TREEHOUSE FOODS, INC. PURCHASE AGREEMENT dated February 19, 2010 Banc of America Securities LLC Wells Fargo Securities, LLC
Exhibit 1.1
dated February 19, 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxx Fargo Securities, LLC
February 19, 0000
XXXX XX XXXXXXX SECURITIES LLC
XXXXX FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TreeHouse Foods, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to
the several underwriters named in Schedule A hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, $400,000,000.00 principal amount of its 7.750%
Senior Notes due 2018 (the “Notes”). The Notes will be guaranteed (collectively, the “Guarantees”)
by each of the subsidiary guarantors named in Schedule B hereto (the “Guarantors”). The
Notes and the Guarantees are collectively referred to herein as the “Securities.” The Securities
will be issued pursuant to an indenture dated as of the Closing Time (as defined in Section 3
hereof) (the “Base Indenture”), among the Company, the Guarantors and Xxxxx Fargo Bank, National
Association, as trustee (the “Trustee”). Certain terms of the Securities will be established
pursuant to a supplemental indenture dated as of the Closing Time (the “Supplemental Indenture”) to
the Base Indenture (together with the Base Indenture, the “Indenture”). To the extent there are no
additional underwriters listed on Schedule A other than you, the term Representatives as
used herein shall mean you as the Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. The use of the neuter in this
Purchase Agreement (the “Agreement”) shall include the feminine and masculine wherever appropriate.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-164903) covering
the public offering and sale of certain securities, including the Securities, under the Securities
Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the
“1933 Act Regulations”), which automatic shelf registration statement became effective under Rule
462(e) under the 1933 Act Regulations (“Rule 462(e)”). Such registration statement, as of any time,
means such registration statement as amended by any post-effective amendments thereto to such time,
including the exhibits and any schedules thereto at such time, the documents incorporated or deemed
to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933
Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B
under the 1933 Act Regulations (“Rule 430B”), is referred to herein as the “Registration
Statement;” provided, however, that the “Registration Statement” without reference to a time means
such registration statement as amended by any post-effective amendments thereto as of the time of
the first contract of sale for the Securities, which time shall be considered the “new effective
date” of
such registration statement with respect to the Securities within the meaning of paragraph
(f)(2) of Rule 430B, including the exhibits and schedules thereto as of such time, the documents
incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form
S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time
pursuant to the Rule 430B. Each base prospectus and preliminary prospectus supplement used in
connection with the offering of the Securities, including the documents incorporated or deemed to
be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are
collectively referred to herein as a “preliminary prospectus.” Promptly after execution and
delivery of this Agreement, the Company will prepare and file a final prospectus relating to the
Securities in accordance with the provisions of Rule 424(b) under the 1933 Act Regulations (“Rule
424(b)”). The base prospectus and final prospectus supplement, in the form first furnished or made
available to the Underwriters for use in connection with the offering of the Securities, including
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes
of this Agreement, all references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“XXXXX”) or its Interactive Data Electronic Applications system (“IDEA”).
As used in this Agreement:
“Applicable Time” means 1:30 P.M., New York City time, on February 19, 2010 or such
other time as agreed by the Company and the Representatives.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses
identified on Schedule C issued at or prior to the Applicable Time and the
prospectus (including any documents incorporated therein by reference) that is included in
the Registration Statement as of the Applicable Time, all considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free
writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”))
relating to the Securities that is (i) required to be filed with the Commission by the
Company, (ii) a “road show that is a written communication” within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from
filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description
of the Securities or of the offering that does not reflect the final terms, in each case in
the form filed or required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a “bona fide
electronic road show,” as defined in Rule 433), as evidenced by its being specified in
Schedule C hereto.
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“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all
such financial statements and schedules and other information incorporated or deemed incorporated
by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, prior to the execution of this Agreement; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “1934
Act”), incorporated or deemed to be incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company and each Guarantor, jointly and severally,
represent and warrant to each of the Underwriters as of the date hereof, the Applicable Time, the
Closing Time (as defined below) and any Date of Delivery (as defined below), and agree with each of
the Underwriters, as follows:
(i) Registration Statement and Prospectuses. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration Statement is an
“automatic shelf registration statement” (as defined in Rule 405) and the Securities have
been and remain eligible for registration by the Company on such automatic shelf
registration statement. The Registration Statement has become effective under the 1933 Act.
No stop order suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus
or the Prospectus has been issued and no proceedings for any of those purposes have been
instituted or are pending or, to the Company’s or any Guarantor’s knowledge, contemplated.
The Company has complied with each request (if any) from the Commission for additional
information.
Each of the Registration Statement and any post-effective amendment thereto, at the
time of its effectiveness and at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus (including the prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment thereto), at the time it was filed, complied
in all material respects with the 1933 Act Regulations and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with this offering was
and will, at the time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX or IDEA, except to the extent
permitted by Regulation S-T.
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The documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, when they became effective or at the time they
were or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the “1934 Act Regulations”).
(ii) Accurate Disclosure. Neither the Registration Statement nor any amendment
thereto, at its effective time, at the Closing Time or at any Date of Delivery, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. At of the Applicable Time, neither (A) the General
Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included, includes or will include
an untrue statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Neither the Prospectus nor any amendment or
supplement thereto (including any prospectus wrapper), as of its issue date, at the time of
any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date
of Delivery, included, includes or will include an untrue statement of a material fact or
omitted, omits or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading. The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus, at the time the
Registration Statement became effective or when such documents incorporated by reference
were filed with the Commission, as the case may be, when read together with the other
information in the Registration Statement, the General Disclosure Package or the Prospectus,
as the case may be, did not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement (or any amendment thereto), the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein. For purposes of this
Agreement, the only information so furnished shall be the information in the first paragraph
under the heading “Underwriting–Commissions and Discounts” and the information in the
paragraphs under the heading “Underwriting–Short Positions” in the Prospectus (collectively,
the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus
conflicts or will conflict with the information contained in the Registration Statement or
the Prospectus, including any document incorporated by reference therein, and any
preliminary or other prospectus deemed to be a part thereof that has not been superseded or
modified. Any offer that is a written communication relating to the Securities made prior
to the initial filing of the Registration Statement by the Company or any person
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acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the 1933 Act Regulations) has been filed with the Commission in accordance with the
exemption provided by Rule 163 under the 1933 Act Regulations (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including without limitation the legending
requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act
provided by Rule 163.
(iv) Well-Known Seasoned Issuer. (A) At the original effectiveness of the
Registration Statement, (B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) under the 0000 Xxx) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the
1933 Act, and (D) as of the execution of this Agreement, the Company was and is a
“well-known seasoned issuer” (as defined in Rule 405).
(v) Company Not Ineligible Issuer. At the time of filing the Registration
Statement and any post-effective amendment thereto, at the earliest time thereafter that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of
any determination by the Commission pursuant to Rule 405 that it is not necessary that the
Company be considered an ineligible issuer.
(vi) Independent Accountants. Deloitte & Touche LLP, who certified the
financial statements of the Company and supporting schedules included in the Registration
Statement, are independent public accountants as required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight
Board. To the knowledge of the Company, Xxxxx Xxxxxxxx LLP, who certified the financial
statements of Xxxxx Foods, Inc., and supporting schedules included in the Registration
Statement, were, with respect to Xxxxx Foods, Inc. as it relates to those financial
statements and supporting schedules, independent public accountants as required by the 1933
Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public
Accounting Oversight Board.
(vii) Financial Statements; Non-GAAP Financial Measures. The financial
statements of the Company included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the related
schedules and notes thereto, present fairly, in all material respects, the financial
position of the Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied
on a consistent basis throughout the periods involved. To the knowledge of the Company or
any Guarantor, without having conducted any independent audit, the financial statements of
Xxxxx Foods, Inc. included or incorporated by reference in the Registration Statement,
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the General Disclosure Package and the Prospectus, together with the related schedules
and notes thereto, (A) present fairly, in all material respects, the financial position of
Xxxxx Foods ,Inc. and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders’ equity and cash flows of Xxxxx Foods, Inc. and its consolidated
subsidiaries for the periods specified; and (B) have been prepared in conformity with GAAP
applied on a consistent basis throughout the periods involved. The supporting schedules, if
any, present fairly, in all material respects, in accordance with GAAP, the information
required to be stated therein. The selected financial data and the summary financial
information included in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly, in all material respects, the information shown therein and have
been compiled on a basis consistent with that of the audited financial statements included
therein. The pro forma financial statements and the related notes thereto included in the
Registration Statement, the General Disclosure Package and the Prospectus present fairly, in
all material respects, the information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. Except as included
therein, no historical or pro forma financial statements or supporting schedules are
required to be included or incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations.
All disclosures contained in the Registration Statement, the General Disclosure Package or
the Prospectus, or incorporated by reference therein, regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply
with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the
extent applicable.
(viii) No Material Adverse Change in Business. Except as otherwise stated
therein, since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise, and (C) there has
been no dividend or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(ix) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
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reason of the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a Material Adverse
Effect.
(x) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its incorporation or organization, has
corporate or similar power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and,
in the case of the Company and the Guarantors, to enter into and perform its obligations
under this Agreement. Each of the Company and each Subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except
as otherwise disclosed in the General Disclosure Package and the Prospectus, all of the
issued and outstanding capital stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly or indirectly
through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, “Liens”), except where such Liens would not,
singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
None of the outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. The only
Subsidiaries of the Company are the Subsidiaries listed on Exhibit 21.1 to the Company’s
Form 10-K for the fiscal year ended December 31, 2009.
(xi) Capitalization. The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the General Disclosure Package and the Prospectus
in the column entitled “Actual” under the caption “Capitalization” (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the General Disclosure Package and the Prospectus or
pursuant to the exercise of convertible securities or options referred to in the General
Disclosure Package and the Prospectus). The outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and non-assessable.
None of the outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(xii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and each Guarantor.
(xiii) The Securities. The Securities to be purchased by the Underwriters from
the Company are in the form contemplated by the Indenture, have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and the Indenture and, at
the Closing Time, will have been executed by the Company and, when
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authenticated in the manner provided for in the Indenture and delivered against payment
of the purchase price thereof, will constitute valid and binding obligations of the Company,
enforceable in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture. The Guarantees of the
Notes are in the respective forms contemplated by the Indenture, have been duly authorized
by the Guarantors for issuance and sale pursuant to this Agreement and the Indenture and, at
the Closing Time, will have been duly executed by each of the Guarantors and, when the Notes
have been authenticated in the manner provided for in the Indenture and delivered against
payment of the purchase price therefore, will constitute valid and binding obligations of
the Guarantors, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles, and will be entitled to the benefits of the
Indenture.
(xiv) The Indenture. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended. The Indenture has been duly authorized by the Company
and the Guarantors and, at the Closing Time, will have been duly executed and delivered by
the Company and the Guarantors and will constitute a valid and binding agreement of the
Company and the Guarantors, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equity principles.
(xv) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities registered for sale pursuant to the Registration
Statement or otherwise registered for sale by the Company under the 1933 Act.
(xvi) Absence of Violations, Defaults and Conflicts. Neither the Company nor
any of its Subsidiaries is (A) in violation of its charter, by-laws or similar
organizational document, (B) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which it or any of them may be bound or
to which any of the properties or assets of the Company or any Subsidiary is subject
(collectively, “Agreements and Instruments”), except for such defaults that would not,
singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect,
or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree
of any arbitrator, court, governmental body, regulatory body, administrative agency or other
authority, body or agency having jurisdiction over the Company or any of its Subsidiaries or
any of their respective properties, assets or operations (each, a “Governmental Entity”),
except for such violations that would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. The Company’s and each Guarantor’s
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein, the Company’s execution, delivery and performance of
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that certain Purchase Agreement (the “Equity Purchase Agreement”) among the Company and
the underwriters named therein regarding the offering of common stock and the consummation
of the transaction contemplated thereby, the Company’s execution, delivery and performance
of that certain Stock Purchase Agreement (the “Xxxxx Acquisition Agreement”), dated as of
December 20, 2009, regarding the acquisition of all of the outstanding common stock of Xxxxx
Foods, Inc. and the consummation of the transactions contemplated thereby and the
consummation of the transactions described in the General Disclosure Package and the
Prospectus (including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described therein under the caption “Use of Proceeds”)
and compliance by the Company and by each Guarantor with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances
that would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of the provisions of the
charter, by-laws or similar organizational document of the Company or any of its
Subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any
Governmental Entity. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any of its Subsidiaries.
(xvii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its Subsidiaries exists or, to the knowledge of the Company or any
Guarantor, is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case, would, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(xviii) Absence of Proceedings. Except as disclosed in the General Disclosure
Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or brought by any Governmental Entity now pending or, to the knowledge of the Company
or any Guarantor, threatened, against or affecting the Company or any of its Subsidiaries,
which, if determined adversely to the Company or its Subsidiaries, as applicable, would,
singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect,
or which might materially and adversely affect their respective properties or assets or the
consummation of the transactions contemplated in this Agreement, the Equity Purchase
Agreement or the Xxxxx Acquisition Agreement or the performance by the Company or of any
Guarantor of its obligations hereunder or thereunder; and the aggregate of all pending legal
or governmental proceedings to which the Company or any such subsidiary is a party or of
which any of their respective properties or assets is the subject which are not described in
the General Disclosure
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Package and the Prospectus, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material Adverse Effect.
(xix) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or to be filed as exhibits thereto
which have not been so described and filed as required.
(xx) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
Governmental Entity is necessary or required for the performance by the Company or any
Guarantor of its obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions contemplated by this
Agreement, the Equity Purchase Agreement or the Xxxxx Acquisition Agreement, except such as
have been already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations, state securities laws or the rules of Financial Industry Regulatory Authority,
Inc. (“FINRA”).
(xxi) Possession of Licenses and Permits. The Company and its Subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate Governmental Entities necessary to
conduct the business now operated by them, except where the failure so to possess would not,
singly or in the aggregate, result in a Material Adverse Effect. The Company and its
Subsidiaries are in compliance with the terms and conditions of all Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. All of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would not, singly
or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of
its Subsidiaries has received any notice of proceedings relating to the revocation or
modification of any Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected to result in a
Material Adverse Effect.
(xxii) Title to Property. The Company and its Subsidiaries have good and
marketable title to all real property owned by them and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (A) are described
in the General Disclosure Package and the Prospectus or (B) would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. All of the leases
and subleases material to the business of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any of its Subsidiaries holds properties
described in the General Disclosure Package and the Prospectus, are in full force and
effect, except for such failures to be in full force and effect as would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect, and neither
the Company nor any such Subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any
of such leases or subleases, or affecting or questioning the rights of
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the Company or such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxiii) Possession of Intellectual Property. Except as described in the
General Disclosure Package and the Prospectus, the Company and its Subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them except where the failure
so to own, possess or license or have other rights to use or acquire would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect, and neither
the Company nor any of its Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its Subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(xxiv) Environmental Laws. Except as described in the General Disclosure
Package and the Prospectus or would not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its Subsidiaries have
all permits, authorizations and approvals required under any applicable Environmental Laws
to conduct their respective businesses and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of
its Subsidiaries and (D) there are no events or circumstances that would reasonably be
expected to form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or Governmental Entity, against or affecting the Company or
any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxv) Accounting Controls and Disclosure Controls. The Company and each of its
Subsidiaries maintain internal control over financial reporting (as defined under Rule
11
13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting
controls which provides reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the
General Disclosure Package and the Prospectus, since the end of the Company’s most recent
audited fiscal year, there has been (1) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (2) no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting. The Company and each of its Subsidiaries maintain a system of disclosure controls
and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations)
that are designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the 1934 Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s Chief Executive Officer and Chief Financial
Officer, as appropriate, to allow timely decisions regarding disclosure.
(xxvi) Payment of Taxes. All income and franchise, and all other material
federal income tax returns of the Company and its Subsidiaries required by law to be filed
have been filed and all taxes shown by such returns or otherwise assessed, which are due and
payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided, except for any such
tax, charge, fee, levy, fine, penalty or other assessment that (A) is currently being
contested in good faith, (B) would not have, or reasonably be expected to have, a Material
Adverse Effect or (C) is described in the General Disclosure Package and the Prospectus. The
United States federal income tax returns of the Company through the fiscal year ended
December 31, 2007 have been settled and no assessment in connection therewith has been made
against the Company.
(xxvii) Insurance. Except, in each case, as would not reasonably be expected
to have a Material Adverse Effect, the Company and its Subsidiaries (1) carry or are
entitled to the benefits of insurance, with financially sound and reputable insurers, in
such amounts and covering such risks as is generally and customarily maintained by companies
of established repute engaged in the same or similar business, and (2) all such insurance is
in full force and effect. The Company has no reason to believe that it or any of its
Subsidiaries will not be able (A) to renew its existing insurance coverage as and when such
policies expire or (B) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect. Neither of the Company nor any of its Subsidiaries
has been denied any insurance coverage which it has sought or for which it has applied.
12
(xxviii) Investment Company Act. Neither the Company nor any Guarantor is
required, and upon the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the General Disclosure Package and
the Prospectus will be required, to register as an “investment company” under the Investment
Company Act of 1940, as amended.
(xxix) Absence of Manipulation. Neither the Company nor, to the knowledge of
the Company, any affiliate of the Company has taken, nor will the Company take or cause any
affiliate to take, directly or indirectly, any action which is designed, or would reasonably
be expected, to cause or result in, or which has constitutes, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
the Securities.
(xxx) Foreign Corrupt Practices Act. None of the Company, any of its
Subsidiaries or, to the knowledge of the Company or any Guarantor, any director, officer,
agent, employee, affiliate or other person acting on behalf of the Company or any of its
Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the FCPA
and the Company and, to the knowledge of the Company or any Guarantor, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(xxxi) Money Laundering Laws. The operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any Governmental Entity (collectively, the
“Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental
Entity involving the Company or any of its Subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company or any Guarantor, threatened.
(xxxii) OFAC. None of the Company, any of its Subsidiaries or, to the
knowledge of the Company or any Guarantor, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the sale of the Securities, or lend, contribute or otherwise make available such
proceeds to any of its Subsidiaries, joint venture partners or other
13
person, for the purpose of financing the activities of any person currently subject to
any U.S. sanctions administered by OFAC.
(xxxiii) Lending Relationship. The Company does not intend to use any of the
proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate
of any Underwriter.
(xxxiv) Statistical and Market-Related Data. Any statistical and
market-related data included in the General Disclosure Package or the Prospectus are based
on or derived from sources that the Company believes, after reasonable inquiry, to be
reliable and accurate.
(xxxv) Xxxxx Financial Data. The revenue, adjusted EBITDA, free cash flow and
other financial data of Xxxxx included in the Prospectus and General Disclosure Package is
derived from unaudited financial information provided by Xxxxx to the Company, which
information is the subject of representations and warranties contained in the Xxxxx
Acquisition Agreement that the Company does not believe, as of the date hereof, to be untrue
in any material respects.
(xxxvi) Regulations T, U and X. None of the transactions contemplated by this
Agreement (including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the 1934 Act, or any
regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of
the Board of Governors of the Federal Reserve System.
(xxxvii) No Restrictions on Dividends. No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary’s shares of capital stock or other
ownership interests, from repaying the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in or contemplated by the
General Disclosure Package and the Prospectus.
(xxxviii) Solvency. The Company and the Guarantors taken as a whole are, and
immediately after the Closing Time will be, Solvent. As used herein, the term “Solvent”
means, with respect to any person on a particular date, that on such date (i) the fair
market value of the assets of such person is greater than the total amount of liabilities
(including contingent liabilities) of such person, (ii) the present fair salable value of
the assets of such person is greater than the amount that will be required to pay the
probable liabilities of such person on its debts as they become absolute and matured, (iii)
such person is able to realize upon its assets and pay its debts and other liabilities,
including contingent obligations, as they mature and become due in the ordinary course and
(iv) such person does not have unreasonably small capital with which to conduct its business
as such business is now conducted.
(xxxix) Ratings. Except as otherwise disclosed in the General Disclosure
Package, no “nationally recognized statistical rating organization” as such term is defined
14
for purposes of Rule 436(g)(2) under the 1933 Act (i) has imposed (or has informed the
Company that it is considering imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any securities of the Company or
(ii) has indicated to the Company that it is considering (a) the downgrading, suspension or
withdrawal of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating so assigned.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any of
its Subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Purchase and Sale. The Company agrees to issue and sell to the several
Underwriters the Notes upon the terms herein set forth and, on the basis of the representations,
warranties and agreements and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the respective
aggregate principal amount of Notes set forth opposite their names on Schedule A. The purchase
price per Note to be paid by the several Underwriters to the Company shall be equal to 97.750% of
the principal amount thereof.
(a) Delivery of certificates for the Securities to be purchased by the Underwriters and
payment therefore shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000 (or at such other place as shall be agreed upon by the
Representatives and the Company) at 9:00 A.M. (New York Time) on March 2, 2010 or such other time
not later than 1:30 p.m. New York time, on the tenth business day thereafter, as the
Representatives and the Company shall determine (such time and date of such closing are called the
“Closing Time”). Delivery of the Securities shall be made through the facilities of The Depositary
Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(b) Public Offering of Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the General Disclosure Package
and the Prospectus, their respective portions of the Notes as soon after this Agreement has been
executed the Representatives, in their sole judgment, have determined is advisable and practicable.
(c) Payment for the Notes. Payment for the Notes shall be made at the Closing Time by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Notes. Banc of America Securities LLC,
15
individually and not as the Representative of the Underwriters, may (but shall not be
obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not
have been received by the Representatives by the Closing Time for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any of its obligations under this
Agreement.
(d) Delivery of the Notes. Delivery of the Notes shall be made through the facilities of DTC
unless the Representatives shall otherwise instruct. Time shall be of the essence, and delivery at
the time and place specified in this Agreement is further a condition to the obligations of the
Underwriters.
(e) Delivery of Prospectus to Underwriters. Not later than 10:00 a.m. on the second business
day following the date the Notes are first released by the Underwriters for sale to the public, the
Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at
such places as the Representatives shall reasonably request.
SECTION 4. Covenants. The Company and the Guarantors, jointly and severally, covenant and
agree with each of the Underwriters as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 4(b), will comply with the requirements of Rule 430B, and will notify the Representatives
promptly, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective or any amendment or supplement to the Prospectus
shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, including any document incorporated by reference therein or for
additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment or of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the
offering of the Securities. The Company will effect all filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and
will provide evidence satisfactory to the Representatives of such timely filing. The Company will
use its reasonable effort to prevent the issuance of any stop order, prevention or suspension and,
if any such order is issued, to obtain the lifting thereof as soon as possible. The Company shall
pay the required Commission filing fees relating to the Securities within the time required by Rule
456(b)(1)(i) under the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations (including, if applicable,
by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-
16
effective amendment to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b)).
(b) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the General Disclosure
Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or,
but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be)
required by the 1933 Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order
that the Registration Statement will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that
the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the
General Disclosure Package or the Prospectus, as the case may be, in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the
Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement, the General Disclosure
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to
any proposed filing or use, furnish the Representatives with copies of any such amendment or
supplement and (C) file with the Commission any such amendment or supplement; provided that the
Company shall not file or use any such amendment or supplement to which the Representatives or
counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may reasonably request.
The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or
1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the
Representatives notice of its intention to make any such filing from the Applicable Time to the
Closing Time and will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto
17
furnished to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when a prospectus
relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required
to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Blue Sky Qualifications. The Company and the Guarantors will each use their reasonable
best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions (domestic or foreign)
as the Representatives may designate and to maintain such qualifications in effect so long as
required to complete the distribution of the Securities; provided, however, that neither the
Company nor any Guarantor shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(f) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the General Disclosure Package and the Prospectus under
“Use of Proceeds.”
(h) Agreement not to Sell Additional Securities. During the period of 90 days following the
date of this Agreement, the Company will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld at the sole discretion of Banc of America Securities
LLC), directly or indirectly, issue, sell, offer to contract or grant any option to sell, pledge,
transfer or otherwise dispose of, any debt securities of the Company or securities exchangeable for
or convertible into debt securities of the Company (other than as contemplated by this Agreement).
18
(i) Reporting Requirements. The Company, during the period when a Prospectus relating to the
Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered
under the 1933 Act, will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and 1934Act Regulations.
(j) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the prior
written consent of the Representatives, it will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission
or retained by the Company under Rule 433; provided that the Representatives will be deemed to have
consented to the Issuer Free Writing Prospectuses listed on Schedule C hereto and any “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been
reviewed by the Representatives. The Company represents that it has treated or agrees that it will
treat each such free writing prospectus consented to, or deemed consented to, by the
Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has
complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at
any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances existing at that
subsequent time, not misleading, the Company will promptly notify the Representatives and will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(k) DTC. The Company shall use commercially reasonable efforts to obtain the approval of DTC
to permit the Notes to be eligible for “book-entry” transfer and settlement through the facilities
of DTC, and agrees to comply with all of its agreements set forth in the representation letters of
the Company to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(l) Earnings Statement. As soon as practicable, but not later than 16 months, after the date
of this Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement and
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
SECTION 5. Payment of Expenses.
(a) Expenses. The Company and the Guarantors, jointly and severally, agree to pay, or cause
to be paid, all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
19
(including financial statements and exhibits) as originally filed and each amendment thereto,
(ii) the preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iii) the fees and disbursements of the
Company’s and the Guarantors’ counsel, accountants and other advisors, (iv) the qualification of
the Securities under securities laws in accordance with the provisions of Section 4(e) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (v) the preparation, printing and delivery to the Underwriters of copies of
each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any
amendments or supplements thereto, and the mailing and delivering of copies thereof to the
Underwriters and dealers, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii)
the fees payable in connection with the rating of the Securities with the rating agencies, (viii)
all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the
Guarantors in connection with approval of the Securities by DTC for “book-entry” transfer, and the
performance by the Company and the Guarantors of their respective obligations under this Agreement
and (ix) the costs and expenses of the Company relating to investor presentations on any “road
show” undertaken in connection with the marketing of the Securities, including without limitation,
expenses associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6, Section 10(a)(i) or Section 10(a)(iii) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and each Guarantor contained herein or in certificates of any officer of the Company or any
of its Subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company
and the Guarantors of their covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become effective
and at Closing Time no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the 1933 Act, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus has been issued and no
proceedings for any of those purposes have been instituted or are pending or, to the Company’s or
any Guarantor’s knowledge, contemplated; and the Company has complied with each request (if any)
from the Commission for additional information. The Company shall have paid the required
Commission filing fees relating to the Securities within the time period
20
required by Rule 456(1)(i) under the 1933 Act Regulations without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations
and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on
the cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the Representatives shall have
received the favorable opinion, dated the Closing Time, of Winston & Xxxxxx LLP, counsel for the
Company and the Guarantors, in the form set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall have
received the favorable opinion, dated the Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters with respect to such matters as the Underwriters may require, and
the Company shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the General Disclosure
Package or the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate of the Chief
Executive Officer or the President of the Company and of the chief financial or chief accounting
officer of the Company, dated the Closing Time, to the effect that (i) there has been no such
Material Adverse Effect, (ii) the representations and warranties of the Company and the Guarantors
in this Agreement are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company and the Guarantors have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the
1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus
or the Prospectus has been issued and no proceedings for any of those purposes have been instituted
or are pending or, to their knowledge, contemplated.
(i) At the time of the execution of this Agreement, the Representatives shall have
received from Deloitte & Touche LLP a letter, dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(ii) At the time of the execution of this Agreement, the Representatives shall have
received from Xxxxx Xxxxxxxx LLP a letter, dated such date, in form and substance
21
satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received
from each of Deloitte & Touche LLP and Xxxxx Xxxxxxxx LLP a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection
(e) of this Section, except that the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) No Ratings Agency Change. For the period from and after the date of this Agreement and
prior to the Closing Time, there shall not have occurred any downgrading, now shall any notice have
been given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded the Company or any
of its subsidiaries by any “nationally recognized statistical rating organization” as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, any such rating.
(h) Form of Securities and Indenture. The Securities and the Indenture shall be executed by
the Company, or the Guarantors, as the case may be, in form and substance reasonably satisfactory
to the Representatives and the Trustee.
(i) Consummation of Xxxxx Acquisition Agreement. The transactions contemplated by the Xxxxx
Acquisition Agreement shall have been consummated in accordance with such agreement, including the
acquisition by the Company of all of the outstanding common stock of Xxxxx Foods, Inc.
(j) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company and the
Guarantors in connection with the issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(k) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time or such
22
Date of Delivery, as the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 5 and except that Sections 1, 7, 8, 9, 15
and 16 shall survive any such termination and remain in full force and effect.
SECTION 7. Indemnification.
(a) Indemnification of Underwriters. The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined
in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including any
information deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Banc of America Securities LLC (subject to Section
7(c))), reasonably incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in the Registration Statement (or any amendment thereto), including any
information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the
Underwriter Information.
23
(b) Indemnification of Company and the Guarantors,, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company and the Guarantors, each of their
respective directors, each of its officers who signed the Registration Statement, and each person,
if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including any information deemed to
be a part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In case any such action
is brought against any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (other than local counsel), reasonably approved
by the indemnifying party, representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party. No indemnifying party shall, without the prior written consent of the
indemnified parties, which consent shall not be unreasonably withheld, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body,
24
commenced or threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the
Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Guarantors, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Guarantors, on the one hand, and the total underwriting discount received by
the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear
to the aggregate initial public offering price of the Securities as set forth on the cover of the
Prospectus.
The relative fault of the Company and the Guarantors, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Guarantors, on the one hand, or by the
Underwriters, on the one hand, and the parties’ relative
25
intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 8.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company or a Guarantor, each officer of the Company or a Guarantor who signed
the Registration Statement, and each person, if any, who controls the Company or a Guarantor within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as the Company and the Guarantors. The Underwriters’ respective obligations to
contribute pursuant to this Section 8 are several in proportion to the number of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the Company
or any of its Subsidiaries submitted pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its officers or directors,
any person controlling the Company or any Guarantor and (ii) delivery of and payment for the
Securities.
SECTION 10. Termination of Agreement.
(a) Termination. The Representatives, in their absolute discretion, may terminate this
Agreement without liability to the Company, by notice to the Company, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this Agreement or since the
26
respective dates as of which information is given in the General Disclosure Package or the
Prospectus, any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with
the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission
or the New York Stock Exchange, or (iv) if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by order of the Commission, FINRA or any other governmental
authority, or (v) a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or Euroclear systems in
Europe, or (vi) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 7, 8, 9, 15 and 16 shall survive such termination and remain
in full force and effect.
SECTION 11. Default by One or More of the Underwriters. If one or more of the Underwriters
shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase
under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the principal amount
of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the principal amount of
Securities to be purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
27
In the event of any such default which does not result in a termination of this Agreement,
either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time
for a period not exceeding seven days in order to effect any required changes in the Registration
Statement, the General Disclosure Package or the Prospectus or in any other documents or
arrangements. As used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section 11.
SECTION 12. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the Banc of America Securities
LLC at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Legal Department; notices to the
Company shall be directed to it at TreeHouse Foods, Inc., Two Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X. X’Xxxxx, General Counsel, Chief
Administrative Officer, Senior Vice President and Corporate Secretary.
SECTION 13. No Advisory or Fiduciary Relationship. The Company and each Guarantor
acknowledge and agree that (a) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the initial public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company and such
Guarantors, on the one hand, and the several Underwriters, on the other hand, (b) in connection
with the offering of the Securities and the process leading thereto, each Underwriter is and has
been acting solely as a principal and is not the agent or fiduciary of the Company, such Guarantor,
any of their respective subsidiaries, or their respective stockholders, creditors, employees or any
other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company or such Guarantor with respect to the offering of the Securities or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company, such Guarantor or any of their respective subsidiaries on other matters) and
no Underwriter has any obligation to the Company, such Guarantor with respect to the offering of
the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company or such Guarantor, and (e) the Underwriters have
not provided any legal, accounting, regulatory or tax advice with respect to the offering of the
Securities and the Company and such Guarantor has consulted their own respective legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Company, the Guarantors and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company, the Guarantors and their respective
successors and the controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters,
the Company, the Guarantors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for
28
the benefit of no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial by Jury. The Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates), each Guarantor (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each
of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 19. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
29
If the foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters and the Company in accordance
with its terms.
Very truly yours, TREEHOUSE FOODS, INC. |
||||
By | /s/ Xxxxxx X. X’Xxxxx | |||
Title: General Counsel, Chief Administrative Officer and Senior Vice President | ||||
BAY VALLEY FOODS, LLC |
||||
By | /s/ Xxxxxx X. X’Xxxxx | |||
Title: Senior Vice President | ||||
EDS HOLDINGS, LLC |
||||
By | /s/ Xxxxxx X. X’Xxxxx | |||
Title: Vice President & Secretary | ||||
CONFIRMED AND ACCEPTED, as of the date first above written: BANC OF AMERICA SECURITIES LLC XXXXX FARGO SECURITIES, LLC |
||||
By: | BANC OF AMERICA SECURITIES LLC | |||
By | /s/ Xxxx Xxxxxxxx | |||
Authorized Signatory | ||||
By: | XXXXX FARGO SECURITIES, LLC | |||
By | /s/ Xxxxx Xxxxxx | |||
Authorized Signatory | ||||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
Principal Amount of | ||||
Name of Underwriter | Securities to be Purchased | |||
Banc of America Securities LLC |
$ | 160,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 144,000,000 | ||
BMO Capital Markets Corp |
$ | 24,000,000 | ||
Rabo Securities USA, Inc |
$ | 24,000,000 | ||
SunTrust Xxxxxxxx Xxxxxxxx, Inc |
$ | 24,000,000 | ||
Barclays Capital Inc |
$ | 12,000,000 | ||
KeyBanc Capital Markets Inc |
$ | 12,000,000 | ||
Total |
$ | 400,000,000 | ||
Sch A-1
SCHEDULE B
Guarantors
1. | Bay Valley Foods, LLC | |
2. | EDS Holdings, LLC | |
3. | Xxxxx Foods, Inc.1 |
1 | Upon the closing of the Xxxxx Acquisition, Xxxxx Foods, Inc. will become a subsidiary of the Company and a Guarantor. |
Sch B-1
SCHEDULE C
Final Term Sheet

7.750% Senior Notes due 2018
Term Sheet
February 19, 2010
February 19, 2010
Issuer:
|
TreeHouse Foods, Inc. | |
Principal Amount:
|
$400,000,000 | |
Title of Securities:
|
7.750% Senior Notes due 2018 | |
Ratings:
|
Xxxxx’x Investors Service,
Inc.: Ba2 Standard & Poor’s Ratings Services: BB- |
|
Maturity:
|
Xxxxx 0, 0000 | |
Xxxxxxxx Price:
|
100.000% | |
Coupon:
|
7.750% | |
Yield to Maturity:
|
7.750% | |
Each March 1 and September 1, commencing September 1, 2010 | ||
Record Dates:
|
February 15 and August 15 | |
Optional Redemption:
|
Make-whole call at T+50 until
March 1, 2014. On or after March 1, 2014, at the prices set forth below for the years beginning on the dates set forth below, plus accrued and unpaid interest: |
Year | Price | |||||
2014 | 103.875 | % | ||||
2015 | 101.938 | % | ||||
2016 and thereafter | 100.000 | % |
Equity Clawback:
|
Up to 35% at 107.750% prior to March 1, 2013 | |
Joint Book-Running Managers:
|
Banc of America Securities LLC Xxxxx Fargo Securities, LLC |
|
Co-Lead Managers:
|
BMO Capital Markets Corp Rabo Securities USA, Inc. SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
|
Co-Managers:
|
Barclays Capital Inc. KeyBanc Capital Markets Inc. |
Sch C-1
Trade Date:
|
February 19, 2010 | |
Settlement Date:
|
March 2, 2010 (T+ 7) | |
Distribution:
|
Registered Offering | |
Net Proceeds:
|
We estimate that the net proceeds of this offering will be approximately $389.8 million, after deducting commissions payable to the underwriters and estimated offering expenses payable by us. | |
CUSIP Number:
|
89469A AA2 | |
US89469AAA25 |
The issuer has filed a registration statement (including a prospectus) with the Securities and
Exchange Commission for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement, the preliminary prospectus supplement
and other documents the issuer has filed with the SEC for more complete information about the
issuer and this offering. You may get these documents for free by visiting the Next-Generation
XXXXX System on the SEC web site at xxx.xxx.xxx. Alternatively, the issuer or any underwriter will
arrange to send you the prospectus if you request it by calling either of the Joint Book-running
Managers at the numbers below:
Banc of America Securities LLC
|
800-294-1322 (toll free) | |
Xxxxx Fargo Securities, LLC
|
000-000-0000 (toll free) |
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers or other notices were automatically generated as a result
of this communication being sent via Bloomberg email or another communication system.
Sch C-2