EXHIBIT 1.1
EXECUTION VERSION
SWIFT & COMPANY
$150,000,000
12-1/2% Senior Subordinated Notes due January 1, 2010
Purchase Agreement
New York, New York
March 21, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ConAgra Foods, Inc., a corporation organized under the laws of the
State of Delaware (the "SELLING NOTEHOLDER"), proposes to sell to the several
parties named in Schedule I hereto (the "INITIAL PURCHASERS"), for whom you (the
"REPRESENTATIVES") are acting as representatives, $150,000,000 principal amount
of 12-1/2% Senior Subordinated Notes due January 1, 2010 (the "NOTES" and,
together with the Guarantees (as defined below), the "SECURITIES") issued by
Swift & Company, a corporation organized under the laws of the State of Delaware
(the "COMPANY"). The Securities were issued under an indenture (as amended and
supplemented to date, the "INDENTURE"), dated as of September 19, 2002, between
the Company, the Guarantors (as defined below) and The Bank of New York Trust
Company of Florida, N.A., as trustee (the "TRUSTEE"). In connection with the
sale of the Securities, the Company, the Guarantors and the Trustee are entering
into the Third Supplemental Indenture to the Indenture to be dated as of March
26, 2003 (the "SUPPLEMENTAL INDENTURE"). The Securities have the benefit of a
registration rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated
as of March 26, 2003, between the Company, the Guarantors and the Initial
Purchasers, pursuant to which the Company and the Guarantors have agreed to file
with the Securities and Exchange Commission (the "COMMISSION") under the
circumstances set forth therein a registration statement under the Securities
Act of 1933, as amended, relating to a separate series of the Company's 12-1/2%
Senior Subordinated Notes due January 1, 2010 (the "EXCHANGE NOTES") to be
offered in exchange for the Notes. The Securities are unconditionally guaranteed
(the "GUARANTEES") on a senior unsecured basis by S&C Holdco 3, Inc. ("S&C
HOLDCO"), the Company's direct parent, and all of the Company's existing
domestic subsidiaries, each of whom is listed on the signature pages hereto
(collectively, the "GUARANTORS"). An affiliate of the Selling Noteholder (the
"CONAGRA AFFILIATE") has agreed to purchase from the Initial Purchasers, and the
Initial Purchasers have agreed to sell to the ConAgra Affiliate, $30,000,000 in
principal amount of the Notes (the "CONAGRA NOTES").
To the extent there are no additional parties listed on Schedule I
other than you, the term Representatives as used herein shall mean you as the
Initial Purchasers, and the terms Representatives and Initial Purchasers shall
mean either the singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 17 hereof.
The Company issued and sold the Securities to the Selling Noteholder on
September 19, 2002 pursuant to an agreement, dated as of May 20, 2002 (as
amended to date, the "ACQUISITION AGREEMENT"), in connection with the
acquisition (the "ACQUISITION") by Swift Foods Company, a Delaware corporation
and our indirect parent corporation, of the United States beef, pork and lamb
processing businesses and the Australian beef business of ConAgra (the "ACQUIRED
BUSINESS").
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum, dated March 17, 2003 (as amended or
supplemented at the Execution Time, the "PRELIMINARY MEMORANDUM"), and a final
offering memorandum, dated March 21, 2003 (the "FINAL MEMORANDUM"). Each of the
Preliminary Memorandum and the Final Memorandum sets forth certain information
concerning the Company, the Acquired Business and the Securities. The Company
hereby confirms that it has authorized the use of the Preliminary Memorandum and
the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers.
1. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, represent and warrant to
each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time and on the
Closing Date (as defined herein), the Final Memorandum did not, and will not
(and any amendment or supplement thereto, at the date thereof and on the Closing
Date will not), contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company and the Guarantors make no representation or warranty as to the
information contained in or omitted from the Preliminary Memorandum or the Final
Memorandum, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company and the
Guarantors by or on behalf of the Initial Purchasers through the Representatives
specifically for inclusion therein.
(b) None of the Company, the Guarantors, any of its or their Affiliates
or any person acting on its or their behalf has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under the
Act.
(c) None of the Company, the Guarantors, any of its or their Affiliates
or any person acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) None of the Company, the Guarantors, any of its or their Affiliates
or any person acting on its or their behalf has engaged in any directed selling
efforts with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S.
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Terms used in this paragraph but not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
(f) The Company has been advised by the NASD's PORTAL Market that the
Securities have been designated PORTAL-eligible securities in accordance with
the rules and regulations of the NASD.
(g) Neither the Company nor any of the Guarantors is, and after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum will be, an "investment
company" within the meaning of the Investment Company Act.
(h) Neither the Company nor any of the Guarantors has paid or agreed to
pay to any person any compensation for soliciting another to purchase any
securities of the Company (except as contemplated by this Agreement).
(i) Neither the Company nor any Guarantor has taken, directly or
indirectly, any action designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(j) The information provided by the Company and the Guarantors pursuant
to Section 6(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(k) Each of S&C Holdco, the Company and their respective subsidiaries
(1) has been duly incorporated and is validly existing as a corporation or
limited liability company in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate or limited liability
company power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Final Memorandum,
and (2) is duly qualified to do business as a foreign corporation or limited
liability company and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect.
(l) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Final Memorandum,
all outstanding shares of capital stock of each such subsidiary (other than
Swift Integrated Genetics, LLC, as to which the Company owns 50% of the
outstanding equity interests) are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(m) The Company's authorized equity capitalization is as set forth in
the Final Memorandum.
(n) The statements in the Final Memorandum under the headings "Risk
Factors--We are subject to extensive governmental regulation and our
noncompliance with or changes in these regulations could adversely affect our
business, financial condition, results of operations and cash flows," "Risk
Factors--Compliance with environmental regulations may result in significant
costs and failure to comply with environmental regulations may result in civil
as well as criminal penalties, liability for damages and negative publicity,"
"Business--Regulation and Environmental Matters," "Business--
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Legal Proceedings," "Certain Relationships and Related Party Transactions,"
"Description of Other Indebtedness," "Description of Notes," "Exchange Offer;
Registration Rights" and "United States Federal Income Tax Considerations,"
fairly summarize the matters therein described.
(o) This Agreement has been duly authorized, executed and delivered by
the Company and each Guarantor.
(p) The Indenture has been duly authorized, executed and delivered by
the Company and each Guarantor and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company and each Guarantor in accordance with
its terms (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance, preference or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity, regardless of whether enforcement is sought in
a proceeding at law or in equity). The Indenture conforms in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission applicable to an indenture qualified
thereunder.
(q) The Supplemental Indenture has been duly authorized and, assuming
due authorization, execution and delivery thereof by the Trustee, when executed
and delivered by the Company and each Guarantor, will constitute a legal, valid
and binding instrument enforceable against the Company and each Guarantor in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance, preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless of
whether enforcement is sought in a proceeding at law or in equity).
(r) The Securities have been duly authorized, and when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers, will have been duly executed and
delivered by the Company and each Guarantor and will constitute the legal, valid
and binding obligations of the Company and each Guarantor entitled to the
benefits of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, preference
or other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity, regardless of whether enforcement is sought
in a proceeding at law or in equity).
(s) The Registration Rights Agreement has been duly authorized and,
when executed and delivered by the Company and each Guarantor (assuming due
execution by the Representatives), will constitute the legal, valid, binding and
enforceable instrument of the Company and each Guarantor (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, regardless of whether enforcement is sought in a proceeding at law or in
equity).
(t) The Exchange Notes and the guarantees of the Exchange Notes (the
"EXCHANGE GUARANTEES," and together with the Exchange Notes, the "EXCHANGE
SECURITIES") have been duly authorized, and, if and when executed and
authenticated in accordance with the provisions of the Indenture and delivered
in accordance with the registered exchange offer contemplated by the
Registration Rights Agreement, will have been duly executed and delivered by the
Company and each Guarantor and will constitute the legal, valid and binding
obligations of the Company and each Guarantor entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, preference or other laws
affecting creditors'
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rights generally from time to time in effect and to general principles of
equity, regardless of whether enforcement is sought in a proceeding at law or in
equity).
(u) The Company and each of the Guarantors have all requisite corporate
power and authority, have taken all requisite corporate action, and have
received and are in compliance with all governmental, judicial and other
authorizations, approvals and orders necessary to enter into and perform this
Agreement, the Indenture, the Supplemental Indenture, the Registration Rights
Agreement and the issuance and sale of the Securities and the Exchange
Securities. No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Indenture, the Supplemental Indenture
or the Registration Rights Agreement, except such as will be obtained with
respect to the Exchange Securities under the Act and the Trust Indenture Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Initial
Purchasers in the manner contemplated herein and in the Final Memorandum and the
Registration Rights Agreement.
(v) Neither the execution and delivery of this Agreement, the
Indenture, the Supplemental Indenture, the Registration Rights Agreement, the
sale of the Securities, nor the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation or imposition of any
lien, charge or encumbrance upon any property or asset of S&C Holdco, the
Company or any of its subsidiaries pursuant to, (i) the certificate of
incorporation or by-laws (or other organizational documents) of the Company or
any of its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which S&C Holdco, the Company
or any of its subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to S&C Holdco, the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over S&C Holdco, the Company or any of its
subsidiaries or any of its or their properties, except, in the case of clauses
(ii) and (iii) for such conflicts, breaches, violations or impositions that
would not have a Material Adverse Effect.
(w) The combined historical financial statements of the ConAgra Red
Meat Business included in the Final Memorandum present fairly in all material
respects the financial condition, results of operations and cash flows of the
ConAgra Red Meat Business as of the dates and for the periods indicated, comply
as to form in all material respects with the applicable accounting requirements
of the Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the combined and consolidated
historical financial statements of S&C Holdco and its subsidiaries included in
the Final Memorandum present fairly in all material respects the financial
condition, results of operations and cash flows of S&C Holdco and its
subsidiaries as of the dates and for the periods indicated, comply as to form in
all material respects with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the summary financial data set forth under the caption
"Summary--Summary Historical and Combined Financial and Other Data" in the Final
Memorandum fairly present, on the basis stated in the Final Memorandum, the
information included therein; and the selected financial data (including without
limitation the financial data relating to the Acquired Business) set forth under
the caption "Selected Historical Combined and Consolidated Financial Data" in
the Final Memorandum fairly present, on the basis stated in the Final
Memorandum, the information included therein. The pro forma financial statements
included in the Final Memorandum include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of
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those adjustments to the combined historical financial statement amounts in the
pro forma financial statements included in the Final Memorandum; the pro forma
financial statements included in the Final Memorandum comply as to form in all
material respects with the applicable accounting requirements of Regulation S-X
under the Act; and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
(x) Except as described in the Final Memorandum, no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving S&C Holdco, the Company or any of their respective
subsidiaries or its or their officers or property is pending or, to the best
knowledge of the Company, threatened that (i) would reasonably be expected to
have a material adverse effect on the performance of this Agreement, the
Indenture, the Supplemental Indenture, the Registration Rights Agreement or the
consummation of any of the transactions contemplated hereby or thereby; or (ii)
would reasonably be expected to have a Material Adverse Effect.
(y) Each of S&C Holdco, the Company and each of their respective
subsidiaries owns or leases all such properties as are necessary to the conduct
of its operations as presently conducted, except where the failure to own or
lease such properties would not have a Material Adverse Effect.
(z) Neither S&C Holdco, the Company nor any of their respective
subsidiaries is in violation or default of (i) any provision of its certificate
of incorporation or by-laws (or other organizational documents); (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over S&C Holdco, the Company or such subsidiary or
any of its properties, as applicable, except, in the case of clauses (ii) and
(iii) for such conflicts, breaches, violations or impositions that would not
have a Material Adverse Effect.
(aa) Deloitte & Touche LLP, who have audited certain financial
statements of S&C Holdco and the ConAgra Red Meat Business and delivered its
reports with respect to the audited consolidated financial statements of S&C
Holdco and its subsidiaries as of May 29, 2002 and the audited combined
financial statements of the ConAgra Red Meat Business, each included in the
Final Memorandum, are independent certified public accountants with respect to
the Company, S&C Holdco and the ConAgra Red Meat Business (i) under Rule 101 of
the AICPA's Code of Professional Conduct and its interpretations and rulings and
(ii) within the meaning of the Act and the applicable published rules and
regulations thereunder.
(bb) PricewaterhouseCoopers LLP, who have reviewed certain financial
statements of S&C Holdco included in the Final Memorandum, are independent
certified public accountants with respect to the Company and S&C Holdco (i)
under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings and (ii) within the meaning of the Act and the
applicable published rules and regulations thereunder.
(cc) The Company and each of the Guarantors has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect), and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable except for any such
assessment, fine or penalty that is currently being contested in good faith or
as would not have a Material Adverse Effect.
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(dd) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the best of the Company's knowledge, is
threatened or imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries' principal
suppliers, contractors or customers, that could have a Material Adverse Effect.
(ee) (1) 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 required by applicable law and are customary in the
businesses in which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; (2) the Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; (3) there are no claims
by the Company or any of its subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or defending under a
reservation of rights clause; and (4) neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied for, except
in the case of clauses (1) through (3) above for such matters that would not
have a Material Adverse Effect; and neither the Company nor any such subsidiary
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 as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
(ff) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company.
(gg) Each of S&C Holdco, the Company and their respective subsidiaries
possess all licenses, certificates, permits and other authorizations issued by
the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and none of S&C Holdco, the Company nor
any such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(hh) Each of S&C Holdco, the Company and each of their respective
subsidiaries maintain 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 principles 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.
(ii) Except as disclosed in the Final Memorandum, each of S&C Holdco,
the Company and their respective subsidiaries are (i) in compliance in all
material respects with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
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other approvals, or liability would not, individually or in the aggregate, have
a Material Adverse Effect. None of S&C Holdco, the Company nor any of their
respective subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(jj) Each of S&C Holdco, the Company and their respective subsidiaries
have fulfilled their respective obligations, if any, under the minimum funding
standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and published
interpretations thereunder with respect to each "plan" (as defined in Section
3(3) of ERISA and such regulations and published interpretations) in which
employees of S&C Holdco, the Company and their respective subsidiaries are
eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations
and published interpretations. None of S&C Holdco, the Company or their
respective subsidiaries have incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in the
ordinary course) or to any such plan under Title IV of ERISA, except for such
liability as would not have a Material Adverse Effect.
(kk) Each of the relationships and transactions specified in Item 404
of Regulation S-K that would have been required to be described in a prospectus
if this offering had been registered under the Act have been so described in the
Final Memorandum (exclusive of any amendment or supplement thereto).
(11) Each of S&C Holdco, the Company and their respective subsidiaries
own, possess, license or have other rights to use, all patents, patent
applications, trade and service marks, trade and service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the "INTELLECTUAL
PROPERTY") necessary for and material to the conduct of their respective
businesses as described in the Final Memorandum, except where the failure to
own, possess, license or have other rights to use such Intellectual Property
would not reasonably be expected to have a Material Adverse Effect. Except as
set forth in the Final Memorandum, (a) there are no rights of third parties to
any such Intellectual Property (other than the rights of licensors in
Intellectual Property that is licensed to S&C Holdco, the Company or their
respective Subsidiaries); (b) to S&C Holdco's or the Company's knowledge, as
applicable, there is no material infringement by third parties of any such
Intellectual Property; (c) there is no pending or, to S&C Holdco's or the
Company's knowledge, as applicable, threatened action, suit, proceeding or claim
by others challenging such Person's rights in or to any such Intellectual
Property; (d) there is no pending or, to S&C Holdco's or the Company's
knowledge, as applicable, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property; and (e)
there is no pending or threatened action, suit, proceeding or claim by others
that S&C Holdco or the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others.
(mm) The subsidiaries listed on Exhibit B attached hereto are the only
significant subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X under the Act.
Any certificate signed by any officer of the Company or any of the
Guarantors and delivered to the Representatives or counsel for the Initial
Purchasers in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company or such Guarantor, as to matters
covered thereby, to each Initial Purchaser.
2. Representations and Warranties of the Selling Noteholder. The
Selling Noteholder represents and warrants to each Initial Purchaser as set
forth below in this Section 2.
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(a) The Selling Noteholder has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business and is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification, except where
the failure to be so qualified or in good standing would not have a Material
Adverse Effect.
(b) The Selling Noteholder has all requisite corporate power and
authority, has taken all requisite corporate action, and has received and is in
compliance with all governmental, judicial and other authorizations, approvals
and orders necessary to enter into and perform this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by
the Selling Noteholder.
(d) The Selling Noteholder is the sole registered and beneficial owner
of the Securities to be sold by the Selling Noteholder pursuant hereto, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, and has full right, power and authority to sell,
transfer and deliver the Securities pursuant hereto. Upon delivery of the
Securities in the manner provided by the Indenture and the Securities, the
Selling Noteholder will transfer to each Initial Purchaser (assuming the Initial
Purchasers have no notice of any adverse claim, as defined in the Uniform
Commercial Code as adopted in the State of New York (the "NYUCC")), record and
beneficial ownership of the Securities, free and clear of any adverse claim (as
defined in the NYUCC), pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind.
(e) There are no stamp or other issuance or transfer taxes or duties or
other similar fees or charges required to be paid in connection with the
execution, delivery and performance of this Agreement or the sale by the Selling
Noteholder of the Securities.
(f) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
execution, delivery and performance by the Selling Noteholder of this Agreement,
or consummation by the Selling Noteholder of the transactions contemplated
herein, except such as may be required under the Act or the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Initial Purchasers in the manner contemplated herein and in the Final
Memorandum and the Registration Rights Agreement.
(g) Neither the execution and delivery of this Agreement nor the
consummation of the transactions herein contemplated, nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or asset of the
Selling Noteholder pursuant to, (i) the certificate of incorporation or bylaws
(or other organizational documents) of the Selling Noteholder, (ii) the terms of
any material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Selling Noteholder is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Selling Noteholder of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Selling Noteholder or any of its
properties.
(h) The Selling Noteholder has not taken and will not take, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
9
(i) None of the Selling Noteholder, any of its Affiliates (other than
Swift Foods, the Company or any of its subsidiaries) or any person acting on its
behalf has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would require the
registration of the Securities under the Act.
(j) None of the Selling Noteholder, any of its Affiliates (other than
Swift Foods, the Company or any of its subsidiaries) or any person acting on its
behalf has engaged in any form of general solicitation or general, advertising
(within the meaning of Regulation D) in connection with any offer or sale of the
Securities in the United States.
(k) None of the Selling Noteholder, any of its Affiliates (other than
Swift Foods, the Company or any of its subsidiaries) or any person acting on its
behalf has engaged in any directed selling efforts with respect to the
Securities, and each of them has complied with the offering restrictions
requirement of Regulation S. Terms used in this paragraph but not otherwise
defined in this Agreement have the meanings given to them by Regulation S.
(l) The Selling Noteholder has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
Any certificate signed by any officer of the Selling Noteholder and
delivered to the Representatives or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Selling Noteholder, as to matters covered thereby, to each
Initial Purchaser.
3. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Noteholder agrees
to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally
and not jointly, to purchase from the Selling Noteholder, at a purchase price of
97.65% of the principal amount thereof, plus accrued interest, if any, from
September 19, 2002, to the Closing Date, including their pro rata share of total
commissions of $900,000, $150,000,000 principal amount of Securities set forth
opposite such Initial Purchaser's name in Schedule I hereto.
4. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on March 26, 2003, or at such
time on such later date as the Representatives shall designate pursuant to
Section 10 hereof, which date and time may be postponed by agreement between the
Representatives and the Selling Noteholder (such date and time of delivery and
payment for the Securities being herein called the "CLOSING DATE"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Initial Purchasers against payment by the several Initial
Purchasers of the purchase price thereof to or upon the order of the Selling
Noteholder by wire transfer payable in same-day funds to the account specified
by the Selling Noteholder. The Securities shall be delivered in such names,
forms and amounts as the Representatives shall specify and delivery shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
10
5. Representations and Warranties by Initial Purchasers. Each Initial
Purchaser, severally and not jointly, represents and warrants to and agrees with
the Selling Noteholder, the Company and the Guarantors that:
(a) Neither it nor any person acting on its behalf has offered or sold,
or will offer or sell, any Securities except (i) to those it reasonably believes
to be qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware that
such sale is being made in reliance on Rule 144A, (ii) in accordance with the
restrictions set forth in Exhibit A hereto and (iii) to the ConAgra Affiliate
which entity qualifies as an accredited investor within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its
own account.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any form
of general solicitation or general advertising (within the meaning of Regulation
D) in the United States.
(c) It is an "accredited investor" within the meaning of Regulation D
under the Act.
6. Agreements. The Company, each Guarantor and the Selling Noteholder,
as applicable, agrees with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to counsel
for the Initial Purchasers, without charge, during the period referred to in
paragraph (c) below, as many copies of the Final Memorandum and any amendments
and supplements thereto as they may reasonably request.
(b) The Company will not amend or supplement the Final Memorandum
without the prior written consent of the Representatives, which consent shall
not be unreasonably withheld.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the Representatives), any
event occurs as a result of which the Final Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it should
be necessary to amend or supplement the Final Memorandum to comply with
applicable law, the Company promptly (i) will notify the Representatives of any
such event; (ii) subject to the requirements of paragraph (b) of this Section 6,
will prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any supplemented or
amended Final Memorandum to the several Initial Purchasers and counsel for the
Initial Purchasers without charge in such quantities as they may reasonably
request.
(d) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may designate and will maintain such
qualifications in effect so long as required for the sale of the Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject. The Company will promptly advise the Representatives
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
11
(e) The Company and the Guarantors will not, and will not permit any of
its or their Affiliates to, resell any Securities that have been acquired by any
of them.
(f) None of the Company, the Guarantors, the Selling Noteholder, any of
its or their Affiliates or any person acting on its or their behalf will,
directly or indirectly, make offers or sales of any security, or solicit offers
to buy any security, under circumstances that would require the registration of
the Securities under the Act.
(g) None of the Company, the Guarantors, the Selling Noteholder, any of
its or their Affiliates or any person acting on its or their behalf will engage
in any form of general solicitation or general advertising (within the meaning
of Regulation D) in connection with any offer or sale of the Securities in the
United States.
(h) So long as any of the Securities are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act, the Company and the Guarantors
will, during any period in which it is not subject to Section 13 or 15(d) of the
Exchange Act or it is not exempt from such reporting requirements pursuant to
and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request of
such holder or prospective purchaser, any information required to be provided by
Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders, from
time to time of such restricted securities.
(i) None of the Company, the Guarantors, the Selling Noteholder, any of
its or their Affiliates or any person acting on its or their behalf will engage
in any directed selling efforts with respect to the Securities, and each of them
will comply with the offering restrictions requirement of Regulation S. Terms
used in this paragraph and not otherwise defined in this Agreement have the
meanings given to them by Regulation S.
(j) The Company will cooperate with the Representatives and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(k) None of the Company, any Guarantor or the Selling Noteholder will
take, directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(1) Upon delivery and payment for the Securities as provided herein,
the Selling Noteholder shall contribute, assign, transfer and deliver to the
Initial Purchasers, effective as of the Closing Date, its right, as a holder of
the Notes on March 15, 2003, to receive interest payments on the Notes.
(m) The Selling Noteholder agrees that it shall not, and shall ensure
that its subsidiaries and affiliates, including the ConAgra Affiliate, shall
not, without the prior written approval of the Initial Purchasers, sell or
otherwise dispose of all or any portion of the ConAgra Notes purchased from the
Initial Purchasers hereunder until the date that the Company publicly discloses
its financial results for the fiscal year ended May 25, 2003.
(n) The Selling Noteholder agrees to pay the costs and expenses (other
than, except as otherwise expressly provided below, with respect to counsel for
the Initial Purchasers) relating
12
to the following matters: (i) the preparation of the Supplemental Indenture, the
Registration Rights Agreement, the sale of the Securities and the fees of the
Trustee; (ii) the preparation, printing or reproduction of the Preliminary
Memorandum and the Final Memorandum and each amendment or supplement to either
of them; (iii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Preliminary Memorandum and the Final Memorandum, and all amendments or
supplements to either of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (v) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading in the PORTAL Market;
(viii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Securities; (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; (x) all costs and expenses relating to obtaining ratings for the
Securities; (xi) all discounts and commissions payable to the Initial
Purchasers; and (xii) all other costs and expenses incident to the performance
by the Company of its obligations hereunder; provided that the provisions of
this Section 6(n) shall not affect any agreement that the Company and the
Selling Noteholder may have entered into, or may hereafter enter into, with
respect to the sharing or reimbursement of any of the foregoing costs and
expenses.
7. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Selling Noteholder, the Company and the Guarantors contained herein at the
Execution Time and the Closing Date, to the accuracy of the statements of the
Selling Noteholder, the Company and the Guarantors made in any certificates
pursuant to the provisions hereof, to the performance by the Selling Noteholder,
the Company and the Guarantors of its or their obligations hereunder and to the
following additional conditions:
(a) The Company shall have requested and caused Xxxxxx & Xxxxxx L.L.P.,
counsel for the Company, to furnish to the Representatives its opinion
(containing customary assumptions, qualifications, limitations and exceptions
reasonably acceptable to the Initial Purchasers), dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) each of S&C Holdco, the Company and each of the Company's
subsidiaries that are Guarantors and that was a company newly formed in
connection with the Acquisition has been duly incorporated;
(ii) each of S&C Holdco, the Company and each of the Company's
domestic subsidiaries is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction
in which it is chartered or organized, with full corporate or limited
liability company power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described
in the Final Memorandum, and is duly qualified to do business as a
foreign corporation or foreign limited liability company and is in good
standing under the laws of each domestic jurisdiction identified on
Exhibit C, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect;
13
(iii) all the outstanding shares of capital stock of the
Company and each of its domestic subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable;
except as otherwise set forth in the Final Memorandum, all outstanding
shares of capital stock of the Company's subsidiaries (other than Swift
Integrated Genetics, LLC, as to which the Company only owns 50% of the
outstanding equity interests) are owned by the Company either directly
or through wholly owned subsidiaries and free of any adverse claim (as
such term is defined in Section 8-102 of the NYUCC); and all
outstanding shares of capital stock of the Company are owned by S&C
Holdco directly and free of any adverse claim (as such term is defined
in Section 8-102 of the NYUCC);
(iv) the Company's authorized equity capitalization is as set
forth in the Final Memorandum.
(v) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor, and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a legal, valid and binding instrument enforceable against
the Company and each of the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
(vi) the Supplemental Indenture has been duly authorized, and,
assuming due authorization, execution and delivery by the Trustee, when
executed and delivered by the Company and each Guarantor, will
constitute a legal, valid and binding instrument enforceable against
the Company and each of the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
(vii) the Securities have been duly and validly authorized,
and when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers, will have been duly executed and delivered by the Company
and each Guarantor, and will constitute legal, valid, binding and
enforceable obligations of the Company and the Guarantors entitled to
the benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity);
(viii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors and, assuming due execution by the Representatives,
constitutes a legal, valid, and binding instrument enforceable against
the Company and the Guarantors in accordance with its terms (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
14
(ix) the statements in the Final Memorandum set forth under
the headings "Risk Factors--We are subject to extensive governmental
regulation and our noncompliance with or changes in these regulations
could adversely affect our business, financial condition, results of
operations and cash flows," "Risk Factors--Compliance with
environmental regulations may result in significant costs and failure
to comply with environmental regulations may result in civil as well as
criminal penalties, liability for damages and negative publicity,"
"Business--Regulation and Environmental Matters," "Business--Legal
Proceedings," "Description of Other Indebtedness," "Certain
Relationships and Related Party Transactions," "Description of Notes,"
"Exchange Offer; Registration Rights" and "United States Federal Income
Tax Considerations," insofar as such statements purport to constitute a
summary of the legal matters referred to therein or the terms of the
Securities, the Indenture and the Registration Rights Agreement fairly
present the matters set forth therein;
(x) other than as described in the Final Memorandum, to the
knowledge of such counsel, there is no pending or threatened action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their officers, directors or property of a
character required to be disclosed in a registration statement filed
under the Act, except in each case for such proceedings that, if the
subject of an unfavorable decision, ruling or finding would not singly
or in the aggregate, have a Material Adverse Effect;
(xi) such counsel has no reason to believe that at the
Execution Time and on the Closing Date the Final Memorandum contained
or contains any untrue statement of a material fact or omitted or omits
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion);
(xii) this Agreement has been duly authorized, executed and
delivered by the Company;
(xiii) the Company and each Guarantor has all requisite
corporate power and authority, has taken all requisite corporate
action, and has received and is in compliance with all governmental,
judicial and other authorizations, approvals and orders necessary to
enter into and perform this Agreement, the Indenture, the Supplemental
Indenture, the Registration Rights Agreement and the sale of the
Securities, and no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the
Indenture, the Supplemental Indenture and the Registration Rights
Agreement, except such as will be obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky or
securities laws of any jurisdiction in connection with the purchase and
sale of the Securities by the Initial Purchasers in the manner
contemplated in this Agreement and the Final Memorandum and the
Registration Rights Agreement and such other approvals (specified in
such opinion) as have been obtained;
(xiv) neither the execution and delivery of the Indenture, the
Supplemental Indenture, this Agreement, the Registration Rights
Agreement, the issuance and sale of the Securities; nor the
consummation of any other of the transactions herein or therein
contemplated, nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or asset of S&C Holdco,
the Company or its domestic subsidiaries pursuant to, (i) the
certificate of
15
incorporation or by-laws of the Company or its domestic subsidiaries
(or other organizational documents); (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which S&C Holdco, the Company or any of its domestic
subsidiaries is a party or bound or to which its respective property is
subject, of which they are aware; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to S&C Holdco, the
Company or any of its domestic subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over S&C Holdco, the Company, any of its
domestic subsidiaries or any of their respective properties, except, in
the case of clauses (ii) and (iii) for such conflicts, breaches,
violations or impositions that would not have a Material Adverse
Effect;
(xv) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein, no
registration of the Securities under the Act, and no qualification of
an indenture under the Trust Indenture Act is required for the offer
and sale by the Initial Purchasers of the Securities in the manner
contemplated by this Agreement; the Indenture is in appropriate form
for qualification under the Trust Indenture Act; and
(xvi) neither the Company nor any of the Guarantors
is and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Final
Memorandum, will be an "investment company" as defined in the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of Delaware, the State of New York or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable, who
are satisfactory to counsel for the Initial Purchasers and upon whom the Initial
Purchasers can rely; and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company, the Guarantors
and public officials. References to the Final Memorandum in this Section 7(a)
include any amendment or supplement thereto at the Closing Date.
(b) The Representatives shall have received from Xxxxxx
Xxxxxxx, Australian counsel for the Initial Purchasers, its opinion (containing
customary assumptions, qualifications, limitations and exceptions reasonably
acceptable to the Initial Purchasers), dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) Each of S&C Australia Holdco Pty. Ltd.
and Australia Meat Holdings Pty Limited (each, an "AUSTRALIAN
SUBSIDIARY" and collectively, the "AUSTRALIAN SUBSIDIARIES")
is incorporated and validly existing under the laws of
Australia and is capable of suing and being sued in its
corporate name;
(ii) all the outstanding shares of capital
stock of the Australian Subsidiaries have been duly and
validly authorized and issued and are fully paid and
nonassessable and are owned, directly or indirectly, by the
Company;
(iii) neither the execution and delivery of
the Indenture, the Supplemental Indenture, this Agreement, the
and sale of the Securities, nor the consummation of any other
of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or asset of the
16
Australian Subsidiaries pursuant to, (i) their respective
constitutions; (ii) the terms of any material indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant
or instrument to which the Australian Subsidiaries or any of
its domestic subsidiaries is a party or bound or to which its
respective property is subject, of which they are aware; or
(iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Australian Subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Australian Subsidiaries or any of their respective properties.
(c) The Selling Noteholder shall have requested and caused
XxXxxxx, North, Xxxxxx & Xxxx, PC LLO, counsel for the Selling Noteholder, to
furnish to the Representatives its opinion (containing customary assumptions,
qualifications, limitations and exceptions reasonably acceptable to the Initial
Purchasers), dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) The Selling Noteholder is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which is it organized, with full corporate
power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business and is duly
qualified to do business as a foreign corporation, except
where the failure to be so qualified or in good standing would
not have a Material Adverse Effect;
(ii) The Selling Noteholder is the sole
registered and, to the best of our knowledge, beneficial owner
of the Securities to be sold by the Selling Noteholder
pursuant hereto, to the best of our knowledge, free and clear
of any pledge, lien, security interest, charge, claim, equity
or encumbrance of any kind, and has full right, power and
authority to sell, transfer and deliver the Securities
pursuant hereto. Upon delivery of the Securities in the manner
provided herein and as provided by the Indenture and the
Securities, the Selling Noteholder will transfer to the
Initial Purchasers (assuming the Initial Purchasers have no
notice of any adverse claim, as defined in the NYUCC),
ownership of the Securities, free and clear of any adverse
claim (as defined in the NYUCC).
(iii) The Selling Noteholder has all
requisite corporate power and authority, has taken all
requisite corporate action, and has received and is
in compliance with all governmental, judicial and other
authorizations, approvals and orders necessary to enter into
and perform this Agreement.
(iv) This Agreement has been duly
authorized, executed and delivered by the Selling Noteholder.
(v) No consent, approval, authorization,
filing with or order of any court or governmental agency or
body is required in connection with the execution, delivery
and performance by the Selling Noteholder of this Agreement,
or consummation by the Selling Noteholder of the transactions
contemplated herein, except such as may be required under the
Act or the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Initial Purchasers in the manner contemplated herein and in
the Final Memorandum and the Registration Rights Agreement.
17
(vi) Neither the execution and delivery of
this Agreement nor the consummation of the transactions herein
contemplated, nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or asset
of the Selling Noteholder pursuant to, (i) the certificate of
incorporation or by-laws (or other organizational documents)
of the Selling Noteholder, (ii) to the best of our knowledge,
the terms of any material indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument
to which the Selling Noteholder is a party or bound or to
which its or their property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to
the Selling Noteholder of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Selling Noteholder or
any of its properties.
(d) The Representatives shall have received from Weil, Gotshal
& Xxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the Closing Date)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company and each Guarantor shall have furnished to the
Representatives a certificate of the Company and each Guarantor, signed by the
Chairman of the Board or the President and the principal financial or accounting
officer of the Company and each Guarantor, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the Final
Memorandum, any amendment or supplement to the Final Memorandum and this
Agreement and that:
(i) the representations and warranties of
the Company and the Guarantors in this Agreement are true and
correct on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date; and
(ii) since the date of the most recent
financial statements included in the Final Memorandum
(exclusive of any amendment or supplement thereto), there has
been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(f) The Selling Noteholder shall have furnished to the
Representatives a certificate of the Selling Noteholder, signed by the Chairman
of the Board or the President and the principal financial or accounting officer
of the Selling Noteholder or their authorized designee, dated the Closing Date,
to the effect that the representations and warranties of the Selling Noteholder
in this Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Selling Noteholder has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(g) At the Execution Time, the Company shall have requested
and caused Deloitte & Touche LLP to furnish to the Representatives a letter,
dated as of the Execution Time, in form and substance satisfactory to the
Representatives, (1) confirming that they are independent certified public
18
accountants with respect to S&C Holdco and the ConAgra Red Meat Business under
Rule 101 of the AICPA's Code of Professional Conduct and its interpretations and
rulings and (2) stating, as of September 18, 2002, the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to Representatives.
(h) With respect to the letter of Deloitte & Touche LLP
referred to in the preceding paragraph and delivered to the Representatives at
the Execution Time (the "INITIAL LETTER"), the Company shall have requested and
caused Deloitte & Touche LLP to furnish to the Representatives a letter, dated
as of the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, (1) confirming that they are independent
certified public accountants with respect to S&C Holdco and the ConAgra Red Meat
Business under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings, (2) stating, as of September 18, 2002, the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
Representatives and (3) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) At the Execution Time, the Company shall have requested
and caused PricewaterhouseCoopers LLP to furnish to the Representatives a
letter, dated as of the Execution Time, in form and substance satisfactory to
the Representatives, (1) confirming that they are independent certified public
accountants with respect to S&C Holdco and its subsidiaries under Rule 101 of
the AICPA's Code of Professional Conduct and its interpretations and rulings and
(2) stating, as of the Execution Time (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Final Memorandum, as of a date not more
than five days prior to the Execution Time) the conclusions and findings of such
firm with respect to the financial information and other matters it ordinarily
covered by accountants' "comfort letters" to Representatives.
(j) With respect to the letter of PricewaterhouseCoopers LLP
referred to in the preceding paragraph and delivered to the Representatives at
the Execution Time (the "PWC INITIAL LETTER"), the Company shall have requested
and caused PricewaterhouseCoopers to furnish to the Representatives a letter,
dated as of the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, (1) confirming that they are independent
certified public accountants with respect to S&C Holdco and its subsidiaries
under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings, (2) stating, as of the Closing Date (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Final Memorandum, as
of a date not more than five days prior to the Closing Date), the conclusions
and findings of each firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to Representatives
and (3) confirming in all material respects the conclusions and findings set
forth in the PWC initial letter.
(k) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change,
decrease or increase specified in the letter or letters referred to in
paragraphs (g), (h), (i) and (j) of this Section 7; or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole good faith judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to market the Securities as
contemplated by the Final Memorandum.
19
(1) Each of the Company and the Guarantors shall have entered
into the Registration Rights Agreement. The Representatives shall have received
counterparts, conformed as executed, thereof.
(m) Each of the Company and the Guarantors shall have entered
into the Supplemental Indenture.
(n) The Representatives shall have received evidence of the
assignment by the Selling Noteholder of its right to receive interest on the
Notes.
(o) The Representatives shall have received the Certificate
from Acquiring Institutional Accredited Investor, duly executed by the ConAgra
Affiliate, substantially in the form attached as Exhibit D to the Indenture.
(p) The Securities shall have been designated as
PORTAL-eligible securities in accordance with the rules and regulations of the
NASD, and the Securities shall be eligible for clearance and settlement through
The Depositary Trust Company.
(q) Prior to the Closing Date, the Selling Noteholder, the
Company and the Guarantors shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
the Selling Noteholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 7 shall
be delivered at the office of counsel for the Initial Purchasers, c/o Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
8. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 7 hereof is not satisfied or
because of any refusal, inability or failure on the part of the Company or the
Selling Noteholder to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Initial Purchasers, the
Selling Noteholder will reimburse the Initial Purchasers severally through
Xxxxxxx Xxxxx Barney on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser, the directors,
officers, employees and agents of each Initial Purchaser and each person who
controls each Initial Purchaser within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
20
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Memorandum and the Final Memorandum (or in any supplement or amendment thereto)
or any information provided by the Company or any Guarantor to any holder or
prospective purchaser of Securities pursuant to Section 6(h), or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein 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, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company and the Guarantors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum and the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the company by or on behalf of
any Initial Purchasers through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company and the Guarantors may otherwise have.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Company, the Guarantors, each of its or their
directors, each of its or their officers, and each person who controls the
Company or any Guarantor within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company and the
Guarantors to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company and the
Guarantors by or on behalf of such Initial Purchaser through the Representatives
specifically for inclusion in the Preliminary Memorandum or the Final Memorandum
(or in any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which any Initial Purchaser may otherwise have. The
Company and the Guarantors acknowledge that the statements set forth in the last
paragraph of the cover page regarding the delivery of the Securities, and, under
the heading "Plan of Distribution," the paragraph related to over-allotment,
covering and stabilization transactions in the Preliminary Memorandum or the
Final Memorandum, constitute the only information furnished in writing by or on
behalf of such Initial Purchaser through the Representatives for inclusion in
the Preliminary Memorandum or Final Memorandum (or in any amendment or
supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the
21
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantors and the Initial
Purchasers agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "LOSSES") to which the
Company or any Guarantor, and one or more of the Initial Purchasers may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and by the Initial
Purchasers on the other from the offering of the Securities; provided, however,
that in no case shall any Initial Purchasers (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantors and the Initial
Purchasers shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Guarantors on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the total net proceeds
received from the offering (before deducting expenses) of the Securities to the
Selling Noteholder on September 19, 2002 pursuant to the Acquisition Agreement,
and benefits received by the Initial Purchasers shall be deemed to be equal to
the total purchase discounts and commissions in each case set forth on the cover
page of the Final Memorandum. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or a Guarantor on the one hand or
the Initial Purchasers on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, the Guarantors and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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 Initial Purchasers' obligations to contribute
pursuant to this Section 9(d) are several in proportion to their respective
purchase obligations hereunder and not joint. For purposes of this Section 9,
each person who controls an Initial Purchaser within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of an
Initial Purchaser shall have the same rights to contribution as such Initial
Purchaser, and each person who controls the Company or a Guarantor within the
meaning of either the Act or the Exchange Act and each officer and director of
the Company and any Guarantor shall have the same rights to contribution as the
Company and the Guarantors, subject in each case to the applicable terms and
conditions of this paragraph (d).
22
10. Default by an Initial Purchaser. If any one or more
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Securities set forth opposite the names of all
the remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided, however
that in the event that the aggregate amount of Securities which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Initial Purchasers shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Initial Purchasers do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser, the Company or the Guarantors. In the event of a default by any
Initial Purchaser as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the Final
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Initial Purchaser of
its liability, if any, to the Company, the Guarantors or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Selling Noteholder and the Company prior to delivery of and payment for
the Securities, if at any time prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange; (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum (exclusive of any amendment or supplement
thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Selling Noteholder and the Company or its officers and of the Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers or the Selling Noteholder or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel;
or, if sent to the Company or any of the Guarantors, will be mailed, delivered
or telefaxed to Swift & Company, (000) 000-0000 and confirmed to it at Swift &
Company, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, Attention: Chief
Financial Officer; or, if sent to the Selling Noteholder, will be mailed,
delivered or telefaxed to ConAgra Foods, Inc., (000) 000-0000 and confirmed to
it at ConAgra Foods, Inc., Xxx XxxXxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
Treasurer.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and
23
controlling persons referred to in Section 9 hereof, and, except as expressly
set forth in Section 6(h) hereof, no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean, the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Material Adverse Effect," with respect to any Person, means a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of such Person and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxxxx Xxxxx Barney Inc.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
24
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Selling Noteholder, the Company, the Guarantors and the several
Initial Purchasers.
Very truly yours,
CONAGRA FOODS, INC., AS SELLING NOTEHOLDER
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Treasurer
SWIFT & COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
S&C HOLDCO 3, INC.
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
SWIFT BEEF COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
SWIFT PORK COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
SWIFT BRANDS COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
XXXXXX BROS. CO., INC.
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
XXXXXXX FOOD DISTRIBUTION COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
SWIFT & COMPANY INTERNATIONAL SALES
CORPORATION
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
XXXXXXX, INC.
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
S&C RESALE COMPANY
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
and Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ XXXX XXXXXXX
------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule I to the foregoing
agreement.
SCHEDULE I
Principal Amount of Securities
Initial Purchasers to Be Purchased
------------------ ------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. .................. $ 90,000,000
X.X. Xxxxxx Securities Inc. ................ 60,000,000
--------------
Total ............................. $ 150,000,000
EXHIBIT A
SELLING RESTRICTIONS FOR OFFERS AND
SALES OUTSIDE THE UNITED STATES
(1)(a) The Securities have not been and will not be registered
under the Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Act or pursuant to an exemption from the registration requirements
of the Act. Each Initial Purchaser represents and agrees that, except as
otherwise permitted by Section 4(a)(i) of the Agreement to which this is an
exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) of the Agreement to which this is an
exhibit), it shall have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "ACT") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and [ ],
2002, except in either case in accordance with Regulation S or
Rule 144A under the Act. Terms used above have the meanings
given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the
Securities, except with its Affiliates or with the prior written
consent of the Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold and prior to the expiry of the period of six months from
the closing of the offering of the Securities, will not offer or sell any
Securities to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments, whether as principal or agent, for purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and (iii) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) received by it in connection with
the issue or sale of any Securities in circumstances in which section 21(1) of
the FSMA would not apply to the Company.
2
EXHIBIT B
SIGNIFICANT SUBSIDIARIES
Swift Beef Company
Swift Pork Company
S&C Australia Holdco Pty. Ltd.
Australia Meat Holdings Pty. Limited
EXHIBIT C
FOREIGN JURISDICTIONS
COMPANY FOREIGN QUALIFICATION
------- ---------------------
ISSUER:
Swift & Company Colorado
GUARANTORS:
S&C Holdco 3, Inc. Colorado
Swift Beef Company California
Colorado
Florida
Idaho
Illinois
Iowa
Kansas
Kentucky
Missouri
Nebraska
New Jersey
Ohio
Pennsylvania
Texas
Utah
Swift Pork Company Arizona
Arkansas
California
Colorado
Florida
Georgia
Hawaii
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisana
Michigan
Minnesota
Mississippi
Missouri
Nevada
New Hampshire
New York
North Dakota
Ohio
COMPANY FOREIGN QUALIFICATION
------- ---------------------
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Xxxxxxxx
Xxxxxxxxxx
West Virginia
Wisconsin
Swift Brands Company Colorado
Xxxxxx Bros. Co., Inc. None
Xxxxxxx Food Distribution Company Arizona
California
Delaware
Florida
Georgia
Hawaii
Illinois
Kentucky
Maryland
Massachusetts
Nebraska
New Hampshire
New Jersey
New Mexico
Pennsylvania
Texas
Swift & Company International Sales Corporation None
Xxxxxxx, Inc. California
Colorado
Idaho
Illinois
Kansas
Kentucky
Missouri
Pennsylvania
Texas
Utah
S&C Resale Company Arizona
California
2
