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EXHIBIT 1.1
10,000,000 Shares
INTERNATIONAL HOME FOODS, INC.
Common Stock
UNDERWRITING AGREEMENT
, 1999
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XXXXXXXXX, XXXXXX & XXXXXXXX
XXXXXXX, XXXXX & CO.
DEUTSCHE BANC ALEX . XXXXX
XXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX XXXX XXXXXX
As representatives of the several Underwriters named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Certain stockholders of International Home Foods, Inc., a Delaware
corporation (the "COMPANY"): named in Schedule II hereto (the "Selling
Stockholders"), severally propose to sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS"), an aggregate of 10,000,000 shares of
the common stock, par value $.01 per share, of the Company (the "FIRM SHARES"),
each Selling Stockholder selling the amount set forth opposite such Selling
Stockholder's name in Schedule II hereto. The Selling Stockholders also propose
to sell to the several Underwriters not more than an additional 1,500,000
shares of the common stock, par value $.01 per share (the "ADDITIONAL SHARES"),
of the Company if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter referred to
collectively as the "SHARES". The shares of common stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "COMMON STOCK".
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SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Shares, which may be amended. The registration
statement, as amended at the time it became effective, including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 434 under the Act, is
hereinafter referred to as the "REGISTRATION STATEMENT"; and the prospectus
(including any prospectus subject to completion meeting the requirements of
Rule 434(b) under the Act provided by the Company with any term sheet meeting
the requirements of Rule 434(b) as the prospectus provided to meet the
requirements of Section 10(a) of the Act) in the form first used to confirm
sales of Shares is hereinafter referred to as the "PROSPECTUS" (including, in
the case of all references to the Registration Statement or the Prospectus,
documents incorporated therein by reference). If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional shares of Common Stock (a
"RULE 462(B) REGISTRATION STATEMENT"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462(b) Registration Statement. The terms "supplement" and
"amendment" or "amend" as used in this Agreement with respect to the
Registration Statement or the Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulation of
the Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to
be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, (i) each Selling Stockholder agrees,
severally and not jointly, to sell the number of Firm Shares set forth opposite
such Selling Stockholder's name in Schedule II hereto and (ii) each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder at
a price per Share of $______ (the "PURCHASE PRICE") the number of Firm Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Firm Shares to
be sold by such Selling Stockholder as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Stockholders
agree to sell the Additional Shares and the Underwriters shall have the right
to purchase, severally and not jointly, up to 1,500,000 Additional Shares from
the Selling Stockholder at the Purchase Price. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. The Underwriters may exercise their right
to purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company and the Selling Stockholders within 30
days after the date of this Agreement. You shall give any such notice on behalf
of the Underwriters and such notice shall specify the aggregate number of
Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof, which date shall be a business day (i) no earlier
than two full business days after
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such notice has been given (and, in any event, no earlier than the Closing Date
(as hereinafter defined)) and (ii) no later than ten business days after such
notice has been given. If any Additional Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Selling
Stockholders the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Selling Stockholders as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares, and
each selling stockholder agrees to sell its pro rata portion of the additional
shares (based on the respective number of firm shares to be sold by such selling
stockholder as set forth in Schedule II hereto).
Each Selling Stockholder and the Company hereby agrees, severally and not
jointly, not to (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Common Stock (regardless of whether any of
the transactions described in clause (i) or (ii) is to be settled by the
delivery of Common Stock, or such other securities, in cash or otherwise),
except to the Underwriters pursuant to this Agreement, for a period of 180 days
after the date of the Prospectus without the prior written consent of Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding the foregoing, during
such period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan consistent with past practice and (ii) the Company
may issue shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof. The Company also
agrees not to file any registration statement with respect to any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. In addition, the Selling Stockholder agrees that, for a period of
180 days after the date of the Prospectus without the prior written consent of
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, it will not make any demand
for, or exercise any right with respect to, the registration of any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock. The Company shall, prior to or concurrently with the execution
of this Agreement, deliver an agreement executed by (i) each Selling
Stockholder, (ii) each of the directors and officers of the Company who is not a
Selling Stockholder and (iii) each stockholder listed on Annex I hereto to the
effect that such person will not, during the period commencing on the date such
person signs such agreement and ending 180 days after the date of the
Prospectus, without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, (A) engage in any of the transactions described in the
first sentence of this paragraph or (B) make any demand for, or exercise any
right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, each such director, officer and stockholder may
make a bona fide gift or gifts or may make a distribution to limited partners or
shareholders provided that such transferee or transferees similarly agree in
writing for the benefit of the Underwriters to the effect set forth in (A) and
(B) above for a period of 180 days after the date of the Prospectus.
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SECTION 3. Terms of Public Offering. The Company and the Selling
Stockholders are advised by you that the Underwriters propose (i) to make a
public offering of their respective portions of the Shares as soon after the
execution and delivery of this Agreement as in your judgment is advisable and
(ii) initially to offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations
and registered in such names as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation shall request no later than two business days prior to the Closing
Date or the applicable Option Closing Date (as defined below), as the case may
be. The Shares shall be delivered by or on behalf of the Selling Stockholders,
with any transfer taxes thereon duly paid by the respective Selling
Stockholders, to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation through
the facilities of The Depository Trust Company ("DTC"), for the respective
accounts of the several Underwriters, against payment to the Selling
Stockholders of the Purchase Price therefore by wire transfer of Federal or
other funds immediately available in New York City. The certificates
representing the Shares shall be made available for inspection not later than
9:30 A.M., New York City time, on the business day prior to the Closing Date or
the applicable Option Closing Date (as defined below), as the case may be, at
the office of DTC or its designated custodian (the `Designated Office"). The
time and date of delivery and payment for the Firm Shares shall be made at the
offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. at 9:00 A.M., New York
City time on December ___, 1999 or such other time on the same or such other
date as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and the Company
shall agree in writing. The time and date of delivery and payment for the Firm
Shares are herein after referred to as the "Closing Date." The Closing Date and
the location of delivery of and payment for the Firm Shares may be varied by
agreement between you, the Selling Stockholders and the Company.
The time and date of delivery and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the offices of Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P. at 9:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by you pursuant to Section 2.
The time and date of delivery and payment for any Additional Shares are
hereinafter referred to as the "Option Closing Date." Any such Option Closing
Date and the location of delivery of and payment for such Additional Shares may
be varied by agreement between you, the Selling Stockholders and the Company.
SECTION 5. Agreements of the Company.
The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, when the Rule 462(b) Registration
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Statement has become effective and (v) of the happening of any event during the
period referred to in Section 5(d) below which makes any statement of a
material fact made in the Registration Statement or the Prospectus untrue or
which requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you three (3) signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits and documents incorporated therein by reference, and to
furnish to you and each Underwriter designated by you such number of conformed
copies of the Registration Statement as so filed and of each amendment to it
with and, without exhibits: but including documents incorporated therein by
reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and,
during such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Shares by you, and to use its reasonable efforts
to cause any such amendment to the Registration Statement to become promptly
effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies
thereof as such Underwriter or dealer may reasonably request.
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(f) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other
than as to matters and transactions relating to the Prospectus, the
Registration Statement, any preliminary prospectus or the offering or sale of
the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon
as practicable an earnings statement covering the twelve-month period ending
December 31, 1999 that shall satisfy the provisions of Section 11(a) of the
Act, and to advise you in writing when such statement has been so made
available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Company's and the Selling
Stockholders' obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's accountants
and any Selling Stockholder's counsel (in addition to the Company's counsel) in
connection with the registration and delivery of the Shares under the Act and
all other fees and expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), any preliminary prospectus, the Prospectus and all
amendments and supplements to any of the foregoing, including the mailing and
delivering of copies thereof to the Underwriters and dealers in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) all costs of printing or producing this Agreement
and any other agreements or documents in connection with the offering,
purchase, sale or delivery of the Shares, (iv) all expenses in connection with
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and reasonable fees and disbursements of
counsel for the Underwriters in connection with such registration or
qualification and memoranda relating thereto), (v) the filing fees and
reasonable disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the
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Shares by the National Association of Securities Dealers, Inc., (vi) all costs
and expenses incident to the listing of the shares on the New York Stock
Exchange, Inc. (the "NYSE"), (vii) the cost of printing certificates
representing the Shares, (viii) the costs and charges of any transfer agent,
registrar and/or depositary, and (ix) all other costs and expenses incident to
the performance of the obligations of the Company and the Selling Stockholders
hereunder for which provision is not otherwise made in this Section. The
provisions of this Section shall not supersede or otherwise affect any
agreement that the Company and the Selling Stockholders may otherwise have for
allocation of such expenses among themselves.
(j) To use its reasonable efforts to list the Shares on the NYSE and
to maintain the listing of the Shares on the NYSE for a period of three years
after the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on
the date of this Agreement and to pay to the Commission the filing fee for such
Rule 462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
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, (iii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and
any amendments thereto, when they become effective (A) will not
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contain any 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 and (B) will comply in all material respects with the Act and
(v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain 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, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(d) The Prospectus is not materially different from the prospectus
included in the Registration Statement at the time of its effectiveness
(including the information (if any) deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A under the Act);
and the term sheet that is included in the Prospectus sets forth all
information material to investors with respect to the offering of the Shares
that is not disclosed in the prospectus subject to completion that is included
in the Prospectus.
(e) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued
by the Company or any of its subsidiaries relating to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of the
Company or any of its subsidiaries, except as disclosed in the Registration
Statement.
(g) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.
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(h) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature, except as
disclosed in the Prospectus.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except for such defaults
which, individually or in the aggregate could not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(k) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, (iii) violate
or conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property or (iv)
result in the suspension, termination or revocation of any Authorization (as
defined below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(m) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, except for such
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violations which, singly or in the aggregate, would not have a material adverse
effect on the business, prospects, financial condition or results of operation
of the Company and its subsidiaries, taken as a whole.
(n) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory organizations
and all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws and rules and regulations promulgated by the U.S.
Food and Drug Administration (the "FDA"), as are necessary to own, lease,
license and operate its respective properties and to conduct its business,
except where the failure to have any such Authorization or to make any such
filing or notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole. Each such Authorization
is valid and in full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such Authorization and except as described in
the Prospectus, such Authorizations contain no restrictions that are burdensome
to the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the occurrence of
any such event or the presence of any such restriction would not, singly or in
the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(p) In each case, except as disclosed in the Prospectus, the Company
and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them
which is material to the business of the Company and its subsidiaries, in each
case free and clear of all liens, encumbrances and defects, or except as such
as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exception as would not have a
11
material adverse effect on the business, prospects, financial condition or
results or operations of the Company and its subsidiaries, taken as a whole.
(q) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all patents, patents rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, services marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, and neither
the Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any such
intellectual property which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect
on the business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(r) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers at a cost that would not have a material adverse effect on the
business, prospects, financial conditions or results of operations of the
Company and its subsidiaries, taken as a whole.
(s) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
the Registration Statement or the Prospectus which is not so disclosed.
(t) There is no (i) significant unfair labor practice complaint,
grievance or arbitration proceeding pending or to the best knowledge of the
Company threatened against the Company or any of its subsidiaries before the
National Labor Relations Board or any state or local labor relations board,
(ii) strike, labor dispute, slowdown or stoppage pending or to the best
knowledge of the Company threatened against the Company or any of its
subsidiaries or (iii) union representation question existing with respect to
the employees of the Company and its subsidiaries, except for such actions
specified in clause (i), (ii) or (iii) above, which, singly or in the
aggregate, would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. Except as disclosed in the Prospectus, to the
best of the Company's knowledge and belief, no collective bargaining or
organizing activities are taking place with respect to the Company or any of
its subsidiaries, except for such collective bargaining or organizing
activities which would not individually or in the aggregate have a material
adverse effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
12
(u) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principle and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) All material tax returns to be filed by the Company and each of
its subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due pursuant
to such returns or pursuant to any assessment received by the Company or any of
its subsidiaries have been paid, other than those being contested in good faith
and for which adequate reserves have been provided.
(w) This Agreement has been duly authorized, executed and delivered by
the Company.
(x) PriceWaterhouseCoopers LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(y) The consolidated financial statements included in and/or
incorporated into the Registration Statement and the Prospectus (and any
amendment or supplement thereto), together with related schedules and notes,
present fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on the basis
stated therein at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; the
supporting schedules, if any, included in and/or incorporated into the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in and
incorporated into the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on the basis of the assumptions described in the
Registration Statement.
(z) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(aa) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement which right has not been waived.
13
(bb) Except as disclosed in the Prospectus, since the respective dates
as of which information is given in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), (i) there has
not occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in
the capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any liability or obligation, direct or contingent which individually
or in the aggregate, could have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(cc) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
SECTION 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement and has, and on the
Closing Date will have, good and clear title to such Shares, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever (other than restrictions on transfer imposed by applicable
law).
(b) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority to enter into this Agreement, and to
sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(d) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, assuming that the Underwriters
shall have purchased the Shares to be sold by such Selling Stockholder for
value in good faith and without any adverse claim, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(e) The execution, delivery and performance of this Agreement by such
Selling Stockholder, the compliance by such Selling Stockholder with all the
provisions hereof and the consummation of the transactions contemplated hereby
and thereby will not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws of the
various states), (ii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under, the organizational documents of such
Selling Stockholder, if
14
such Selling Stockholder is not an individual, or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
such Selling Stockholder and to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling Stockholder is
bound or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over such Selling Stockholder or any property of
such Selling Stockholder.
(f) The information in the Registration Statement under the caption
"Principal Stockholders" and "Selling Stockholders" which specifically relates
to such Selling Stockholder does not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(g) At any time during the period described in Section 5(d), if there
is any change in the information referred to in Section 7(h), such Selling
Stockholder will immediately notify you of such change.
(h) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the Underwriters
shall be deemed to be a representation and warranty by such Selling Stockholder
to the Underwriters as to the matters covered thereby.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages and liabilities and judgments
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Shares to
such person, and if the Prospectus (as so amended and supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or
judgment; provided that the Company shall have furnished any amendments or
15
supplements thereto to the such Underwriter in the requisite quantity and on a
timely basis to permit proper delivery.
(b) Each Selling Stockholder agrees, severally, to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent and only
to the extent of any information included in, or omitted from, the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus made in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder and, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished in writing to the Company by such Underwriter through you expressly
for use therein provided that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and liabilities
and judgments purchased Shares, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Shares to such person, and if the Prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or judgment; provided, that the Company shall have furnished
any amendments or supplements thereto to such Underwriter in the requisite
quantity and on a timely basis to permit proper delivery. Notwithstanding the
foregoing, the aggregate liability of any Selling Stockholder pursuant to this
Section 8(b) shall be limited to an amount equal to the total proceeds (before
deducting expenses) received by such Selling Stockholder from the Underwriters
for the sales of the Shares sold by such Selling Stockholder hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each Selling Stockholder, its directors, and each person, if any, who controls
such Selling Stockholder within the meaning of Section 15 of the Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company and the Selling Stockholders to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
16
(d) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a), 8(b) or 8(c)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to each of Sections 8(a), 8(b) and 8(c) the Underwriter shall
not be required to assume the defense of such action pursuant to this Section
8(d), but may employ separate counsel and participate in the defense thereof,
but the fees and expenses of such counsel, except as provided below, shall be
at the expense of such Underwriter). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
Underwriters, their officers and directors and all persons, if any, who control
any Underwriter within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, (ii) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and all persons, if
any, who control the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all of the Selling Stockholders and all
persons, if any, who control any Selling Stockholder within the meaning of
either such Section, and all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the Underwriters, their
officers and directors and such control persons of any Underwriters, such firm
shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. In the case of any such separate firm for the Company and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholders and such control persons of any Selling Stockholder,
such firm shall be designated in writing by the Attorneys. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have requested from the
indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement
17
request other than payments of amounts being disputed in good faith. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action 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 the indemnified party.
(e) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause 8(e)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(e)(i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Selling Stockholders, and
the total underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Selling Stockholders on the one hand or the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8(e) 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 in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the
18
total price at which the Shares 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 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(e) are several in proportion to the respective
number of Shares purchased by each of the Underwriters hereunder and not joint.
The contribution obligations of a Selling Stockholder under this
Section 8(e) shall in no event exceed an amount equal to the total proceeds
(before deducting expenses) received by such Selling Stockholder from the sale
of the Shares sold by such Selling Stockholder hereunder.
(f) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) Each Selling Stockholder hereby designates International Home
Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, as its
authorized agent, upon which process may be served in any action which may be
instituted in any state or federal court in the State of New York by any
Underwriter, any claim for indemnification or contribution under or pursuant to
this Section 8, and each Selling Stockholder will accept the jurisdiction of
such court in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or venue.
A copy of such process shall be sent or given to such Selling Stockholder, at
the address for notices specified in Section 12 hereof.(3)
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the Chairman and Chief Executive Officer, and
President of the Company, confirming the matters set forth in Sections 6(bb),
9(a) and 9(b) and that the Company has complied with all
19
of the agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior to the
Closing Date.
(d) Except as disclosed in the Prospectus since the respective dates
as of which information is given in the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), (i) there
shall not have occurred any change or any development involving a prospective
change in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the Company
or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, has or would have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries taken as a whole and, in your judgment,
makes it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you
shall have received on the Closing Date a certificate dated the Closing Date
from such Selling Stockholder to such effect and to the effect that such
Selling Stockholder has complied with all of the agreements and satisfied all
of the conditions herein contained and required to be complied with or
satisfied by such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx & Xxxxxx L.L.P. counsel for the Company, to the effect that:
(i) the Company has been duly incorporated and each of the
Company and each corporate subsidiary thereof that was
incorporated in any state of the United States of America,
which subsidiaries shall be listed in an annex to such
opinion (collectively the "Domestic Subsidiaries") is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties;
(ii) each of the Company and the Domestics Subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company and the Domestic
Subsidiaries, taken as a whole;
20
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the
Prospectus;
(iv) all the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholder)
have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or
similar rights;
(v) all of the outstanding shares of capital stock of each of the
Company's Domestic Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and
(except for director's qualifying shares) are owned by the
Company, directly or indirectly through one or more
subsidiaries, and, to the best of such counsel's knowledge,
are free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (other than
liens and security interest created pursuant to the "senior
bank facilities" or the "indenture" (each as described in the
Prospectus) or law);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and by or on behalf of each Selling
Stockholder;
(vii) the Registration Statement has become effective under the
Act, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are, to the best
of such counsel's knowledge after due inquiry, pending before
or have been threatened by the Commission;
(viii) the statements under the captions "Business-Certain Legal and
Regulatory Matters" (other than -- "Food Safety and Labeling"
and -- "Federal Trade Commission"), "Certain Relationships
and Related Transactions", "Risk Factors-Our debt facilities
contain restrictive covenants, which may limit our ability to
engage in various corporate activities," "Risk-Factors -
Shares eligible for future sale and registration rights may
affect the market price of our common stock", and
"Description of Capital Stock" and "Description of
Indebtedness" in the Prospectus and Item 15 of Part II of the
Registration Statement, insofar as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called
for with respect to such legal matters, documents and
proceedings;
(ix) to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its Domestic Subsidiaries is
in violation of its respective charter or by-laws and, to the
best of such counsel's knowledge after due inquiry, neither
the Company nor any of its Domestic Subsidiaries is in
default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or other
instrument to which the Company or any of its Domestic
Subsidiaries is a party or by which the Company or any of its
Domestic Subsidiaries or their respective property is bound
except
21
for such defaults which, individually or in aggregate could
not have a material adverse effect on the Company and its
Domestic Subsidiaries taken as a whole;
(x) the execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the
provisions hereof and the consummation of the transactions
contemplated hereby will not (A) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such
as may be required under the Act or other securities or Blue
Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or
a default under, the charter or by-laws of the Company or any
of its Domestic Subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its Domestic
Subsidiaries, taken as a whole, to which the Company or any
of its Domestic Subsidiaries is a party or by which the
Company or any of its Domestic Subsidiaries or their
respective property is bound, (C) violate or conflict with
any applicable law or any rule, regulation, judgment, order
or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its Domestic
Subsidiaries or their respective property or (D) result in
the suspension, termination or revocation of any
Authorization of the Company or any of its Domestic
Subsidiaries that is material to the Company and its Domestic
Subsidiaries, taken as a whole, or any other impairment of
the rights of the holder of any such Authorization;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its Domestic Subsidiaries is or could be a
party or to which any of their respective property is or
could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so
described or filed as required;
(xii) to the best of such counsel's knowledge after due inquiry, no
relationship, direct or indirect, exists between or among the
Company or any of its Domestic Subsidiaries on the one hand,
and the directors, officers or stockholders of the Company or
any of its subsidiaries on the other hand, which is required
by the Act to be described in the Registration Statement or
the Prospectus which is not so described;
(xiii) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(xiv) except as described in the Registration Statement, to the
best of such counsel's knowledge after due inquiry, there are
no contracts, agreements or understandings
22
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Act with respect to any securities of the Company
or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement that
have not been waived in connection with the offering.
In addition to the matters set forth above, such opinion shall include
a statement that (A) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for financial
statements and other financial data and statistical information and data
included therein as to which no opinion or statement need be expressed)
complied when so filed as to form with the Exchange Act, (B) the Registration
Statement and the Prospectus and any supplement or amendment thereto (except
for the financial statements and other financial data and statistical
information and data included therein as to which no opinion or statement need
be expressed) comply as to form in all material respects with the Act, (C) such
counsel has no reason to believe that at the time the Registration Statement
became effective or on the date of this Agreement, the Registration Statement
and the prospectus included therein (except for the financial statements and
other financial data and statistical information and data as to which such
counsel need not express any belief) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (D) such counsel
has no reason to believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial data and
statistical information and data, as aforesaid) contains any untrue statement
of a material fact or omits 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 and the Prospectus is not materially different from the
prospectus included in the Registration Statement at the time of its
effectiveness (including the information (if any) deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430 under
the Act).
The opinion of Xxxxxx & Xxxxxx L.L.P. described in Section 10(f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx & Xxxxxx L.L.P., counsel for each Selling Stockholder to the effect
that:
(i) such Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder pursuant to this
Agreement and has good and clear title to such Shares, free
of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever (other
than restrictions on transfer imposed by applicable law);
(ii) such Selling Stockholder has full legal right, power and
authority, and all authorization and approval required by
law, to enter into this Agreement and to sell, assign,
transfer and deliver the Shares to be sold by the Selling
Stockholder in the manner provided herein and therein;
23
(iii) upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, assuming
that the Underwriters shall have purchased the Shares to be
sold by such Selling Stockholder for value in good faith and
without any adverse claim, good and clear title to the Shares
will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests, equities
and claims whatsoever;
(iv) the execution, delivery and performance of this Agreement by
such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and
the consummation of the transactions contemplated hereby and
thereby will not (A) require any consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various
states), (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the
organizational documents of such Selling Stockholder, or, to
the best of such counsel's knowledge, any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Selling Stockholder to which such
Selling Stockholder is a party or by which any property of
such Selling Stockholder is bound or (C) to the best of such
counsel's knowledge, violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction
over such Selling Stockholder or any property of such Selling
Stockholder; and
(v) this Agreement has been duly authorized, executed and
delivered by such Selling Stockholder.
The opinion of Xxxxxx & Xxxxxx L.L.P. described immediately above
shall be rendered to you at the request of the Selling Stockholders, and shall
so state therein. In giving such opinions with respect to matters covered
immediately above, counsel for such Selling Stockholder may state its opinion
and belief that its opinion and belief is based upon his or his staff's
participation in the preparation of the Registration Statement and Prospectus
and any amendment or supplements thereto and review and discussion of the
contents thereto, but are without check or verification except as specified.
(h) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx Xxxxx, Esq., General Counsel of the Company, to the effect that:
(i) neither the Company nor any of its subsidiaries has violated
any Environmental Law; any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or any
provisions of the Foreign Corrupt Practices Act or the rules
and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have
a material adverse effect on the business, prospects,
financial condition or results of operation of the Company
and its subsidiaries, taken as a whole;
24
(ii) each of the Company and its subsidiaries has such
Authorizations of, and has made all filings with and notices
to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any
applicable Environmental Laws or the FDA, as are necessary to
own, lease, license and operate its respective properties and
to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries,
taken as a whole; each such Authorization is valid and in
full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after
notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its
subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(iii) the Company and its subsidiaries own or possess the right to
use, or can acquire on reasonable terms, all patents, patent
rights, licenses, inventions, copyrights, know how (including
trade secrets and other unpatented and/or unpatentable
proprietary of confidential information, systems or
procedures), trademarks, service marks and tradenames
("intellectual property") currently employed by them in
connection with the business now operated by them except
where the failure to own or possess or otherwise be able to
acquire such intellectual property would not, singly or in
the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole, and neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with
asserted rights of others with respect to any such
intellectual property which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the business,
prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole;
(iv) the statements under the captions "Business - Certain Legal
and Regulatory Matters - Food Safety and Labeling" and
"Federal Trade Communication" insofar as such statements
constitute a summary of the legal matters, documents or
25
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings.
The opinion of the General Counsel of the Company described in Section
9(h) above shall be rendered to you at the request of the Company and shall so
state therein.
(i) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for the
Underwriters, as to the matters referred to in Sections 9(f)(iii), the last
paragraph of Section 9(f) clauses (B), (C) and (D) (but only with respect to
the Company), 9(f)(viii) (but only with respect to the statements under the
caption "Description of Capital Stock") and an opinion to the effect that the
statements under "Underwriting", insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal matters,
documents and proceedings.
In giving such opinions with respect to the matters covered by clauses
(B), (C) and (D) of the last paragraph of Section 9(f), counsel for the
Underwriters may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (other than documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated by reference), but are without independent
check or verification except as specified.
(j) You shall have received, on the date hereof and on the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in form and substance satisfactory to you, from PriceWaterhouseCoopers LLP,
independent public accountants, containing the information and statements of
the type ordinarily included in accountants' "comfort letters" to Underwriters
with respect to the financial statements and certain financial information
contained or incorporated by reference into the Registration Statement and the
Prospectus.
(k) The Company shall have delivered to you the agreements specified
in Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(l) The Shares shall have been duly listed, subject to notice of
issuance, on the NYSE.
(m) The Company and the Selling Stockholders shall not have failed on
or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company
or the Selling Stockholders, as the case may be, on or prior to the Closing
Date.
(n) On or after the date hereof, there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or any
review (or any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under
26
review with an uncertain direction) by a "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act and (ii) there shall not have occurred any change, nor shall any
notice have been given of any potential or intended adverse change, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company and the Selling
Stockholders if any of the following has occurred: (i) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and, in
your judgment, makes it impracticable or inadvisable to market the Shares on
the terms and in the manner contemplated in the Prospectus, (ii) the suspension
or material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the total number of Firm Shares or Additional Shares, as
the case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I bears
to the total number of Firm Shares which all the non-defaulting Underwriters
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, which such
defaulting Underwriter or
27
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Shares or Additional Shares, as the
case may be, which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Firm Shares or Additional Shares, as the case may
be, without the written consent of such Underwriter. If on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares
and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be
purchased by all Underwriters and arrangements satisfactory to you, the Company
and the Selling Stockholders for purchase of such Firm Shares are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case which does not result in termination of
this Agreement, either you, the Company or the Selling Stockholders shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. If,
on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Additional Shares and the aggregate number of Additional Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase such Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase on such date in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by such Selling
Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by such
Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement.
SECTION 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
International Home Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, (ii) if to the Selling Stockholders, to the attention of M. Xxxxxx Xxxxx
c/o International Home Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, with a copy to C. Xxxx Xxxxxxxxxxx and Xxxxx Misericordia c/o
International Home Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, and (iii) if to any Underwriter or to you, to you c/x Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
28
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Selling Stockholder as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Company also
agrees to reimburse the several Underwriters, their directors and officers and
any persons controlling any of the Underwriters for any and all fees and
expenses (including, without limitation, the fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder
(including, without limitation, pursuant to Section 8 hereof).(3)
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts of
laws.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
29
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
INTERNATIONAL HOME FOODS, INC.
By:
----------------------------------
Name:
Title:
SELLING STOCKHOLDERS
HICKS, MUSE, XXXX & XXXXX EQUITY FUND
III, L.P.
By: HM3/GP Partners, L.P., its General
Partner
By: Xxxxx, Muse GP Partners III, L.P.,
its General Partner
By: Xxxxx, Muse Fund III Incorporated,
its General Partner
By:
----------------------------------
Name:
Title:
HM3/IH PARTNERS L.P.
By: Xxxxx, Muse Fund III Incorporated,
its General Partner
By:
----------------------------------
Name:
Title:
30
XXXXXXXXX, XXXXXX & XXXXXXXX
XXXXXXX, XXXXX & CO.
DEUTSCHE BANC ALEX. XXXXX
XXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX XXXX XXXXXX
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------------
Name:
Title:
31
SCHEDULE I
Underwriters Number of Firm Shares
------------ to be Purchased
---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Xxxxxxx, Sachs & Co.
Deutsche Banc Securities, Inc.
Chase Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Total
------------
32
SCHEDULE II
HICKS, MUSE, XXXX & 9,950,000
XXXXX EQUITY FUND III, L.P.
HM3/IH PARTNERS, L.P. 50,000
The Additional Shares shall be allocated pro-rata between the above
parties in the same ratio as the Firm Shares.
33
ANNEX I
Hicks, Muse, Xxxx & Xxxxx Equity Fund III L.P.
HM3/IH Partners, L.P.
HM/3 Coinvestors, L.P.
C. Xxxx Xxxxxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
X. Xxxxxx Xxxxx
Xxxxx M. Misericordia
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
X. X. Xxxxxxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx