EXHIBIT 1
SONOCO PRODUCTS COMPANY
Debt Securities
Underwriting Agreement
[________, 200_]
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Sonoco Products Company, a South Carolina corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein shall each
be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement or statements (the file numbers of which are set forth in Schedule I
hereto) on Form S-3, relating to certain debt securities (the "Shelf
Securities") to be issued from time to time by the Company. The Company also has
filed with, or proposes to file with, the Commission pursuant to Rule 424 under
the Securities Act a prospectus supplement specifically relating to the
Securities. The registration statements as amended to the date of this Agreement
are hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Basic Prospectus". The
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any preliminary
form of Prospectus (a "preliminary prospectus") previously filed with the
Commission pursuant to Rule 424 or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
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The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds by wire transfer or other same day funds on
the date and at the time and place set forth in Schedule I hereto (or at such
time and place on the same or such other date, not later than the fifth Business
Day thereafter, as the Representatives and the Company may agree in writing).
Such payment will be made upon delivery to, or to the Representatives for the
respective accounts of, such Underwriters of the Securities registered in such
names and in such denominations as the Representatives shall request not less
than two full Business Days prior to the date of delivery, with any transfer
taxes payable in connection with transfer to the Underwriters duly paid by the
Company. As used herein, the term "Business Day" means any day other than a day
on which banks are permitted or required to be closed in New York City. The time
and date of such payment and delivery with respect to the Securities are
referred to herein as the Closing Date. The certificates for the Securities will
be made available for inspection and packaging by the Representatives by 1:00
P.M. on the Business Day prior to the Closing Date at such place in New York
City as the Representatives and the Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"),
and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and the Prospectus, as
amended or supplemented at the Closing Date, if applicable, will
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act
of the Trustee, and (ii) statements or omissions in the
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Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents
are filed with the Commission will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will
not contain an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes
in their consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis except as set forth in the notes thereto, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, business, prospects, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company
and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(f) each of the Company's significant subsidiaries (as defined
in the Commission's Regulation S-X) incorporated under the laws of
a state of the United States ("significant subsidiary") has been
duly incorporated and is validly existing as a corporation under
the laws of its jurisdiction of incorporation, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
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qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and all the
outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are
fully-paid and nonassessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims except for statutory
liens which individually and in the aggregate are not material;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Underwriters and the valid and binding nature
of this Agreement on the Underwriters, constitutes a valid and
legally binding agreement of the Company, except as rights to
indemnity and contribution may be limited by applicable law;
(h) the Securities have been duly authorized, and when issued
and delivered pursuant to this Agreement and the Indenture, will
have been duly executed, authenticated, issued and delivered and
will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture; the Indenture
has been duly authorized, executed and delivered by the Company and
the Trustee, has been duly qualified under the Trust Indenture Act,
and constitutes a valid and binding instrument enforceable in
accordance with its terms, subject as to enforceability to
bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Securities and the
Indenture will conform to the descriptions thereof in the
Prospectus;
(i) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Articles of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities
and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the
Articles of Incorporation or the By-Laws of the Company or any
material applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities by the Company or the consummation by the Company of
the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and
the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
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(j) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of
its subsidiaries is or may be a party or to which any property of
the Company or any of its subsidiaries is or may be the subject
which, if determined adversely to the Company, could individually
or in the aggregate reasonably be expected to have a material
adverse effect on the general affairs, business, prospects,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole
and, to the best of the Company's knowledge, no such proceedings
are contemplated by governmental authorities; and there are no
contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required; and
5. The Company covenants and agrees with the several Underwriters
as follows:
(a) to file the Prospectus in a form approved by the
Representatives pursuant to Rule 424 under the Securities Act not
later than the Commission's close of business on the second
Business Day following the date of determination of the offering
price of the Securities;
(b) to deliver to each Representative and counsel for the
Underwriters identified in Schedule I hereto ("Counsel for the
Underwriters"), at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated
by reference therein and, during the period mentioned in paragraph
(f) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as the Representatives
may reasonably request;
(c) during the period mentioned in paragraph (f) below, before
filing any amendment or supplement to the Registration Statement or
Prospectus, to furnish to the Representatives a copy of any
proposed amendment or supplement to the Registration Statement or
the Prospectus, for review, and not to file any such proposed
amendment or supplement to which the Representatives reasonably
object;
(d) to file promptly, subject to the provisions of paragraph
(c) above, all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
during the period mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (f) below, to
advise the Representatives promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and
(iv) of the receipt by the Company of any notification with respect
to any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order or notification and, if
issued, to obtain as soon as possible the withdrawal thereof;
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(f) if, during such period after the first date of the public
offering of the Securities as in the opinion of Counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to
the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Securities
may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, such amendments
or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus
will comply with law;
(g) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Securities and to pay all fees and expenses
(including the reasonable fees and disbursements of Counsel for the
Underwriters) reasonably incurred in connection with such
qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as the Representatives may designate; provided that
the Company shall not be required to file a general consent to
service of process or to qualify as a foreign corporation to do
business in any jurisdiction;
(h) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the
first complete fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission promulgated thereunder;
(i) through its fiscal year ending in 2004, to furnish to the
Representatives copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies
of any reports with financial statements furnished to or filed with
the Commission or any national securities exchange;
(j) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of or guaranteed by the Company which are
substantially similar to the Securities without the prior written
consent of the Representatives; and Carlbrook
(k) to pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the
generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution, authentication and delivery
of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and
any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including the
reasonable fees of Counsel for the Underwriters and their
disbursements), (iv) in connection with the listing of the
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Securities on any stock exchange, (v) related to any filing with
National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture,
the Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to underwriters and dealers of
copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct in all material respects on
and as of the Closing Date as if made on and as of the Closing Date
and the Company shall have in all material respects complied with
all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed
for such filing by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to the satisfaction of the
Representatives;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material
adverse change or any development involving a material adverse
change, in or affecting the general affairs, business, financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which in
the judgment of the Representatives makes it impracticable to
proceed with the public offering or the delivery of the Securities
on the terms and in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to the Representatives, on the best knowledge of such
executive officer, to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there
has not occurred any material adverse change, or any development
involving a material adverse change, in or affecting the general
affairs, business, prospects, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole from that set forth or contemplated in the
Prospectus;
(f) Haynsworth ▇▇▇▇▇▇▇ ▇▇▇▇, P.A., counsel for the Company,
shall have furnished to the Representatives their written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
7
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) each of the Company's significant subsidiaries
has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of
incorporation with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(iii) such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or described as required, or of any
pending legal proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is
the subject required to be described in the Registration
Statement or the Prospectus which are not described as
required;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act; the Securities have been duly authorized,
executed, authenticated, issued and delivered; and the
Indenture and the Securities constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject, as to enforceability, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(v) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(vi) neither the Company nor any of its significant
subsidiaries is, or with the giving of notice or lapse of time
or both would be, in violation of or in default under, its
Articles of Incorporation or By-Laws or, to the best knowledge
of such counsel, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument relating
to indebtedness for money borrowed known to such counsel to
which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties
is bound, except for violations and defaults which
individually and in the aggregate are not material to the
Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the
Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this
Agreement and the consummation of the transaction herein and
therein contemplated will not, to the best knowledge of such
counsel, conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument relating to indebtedness for
money borrowed known to such counsel to which the Company or
any of its significant subsidiaries is a party or by which the
Company or any of its significant subsidiaries is bound or to
which any of the property or assets of the Company or any of
its significant subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Articles of Incorporation, or the By-Laws of the Company;
(vii) all regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company under the Federal laws of the United States and the
8
laws of the State of South Carolina for the issuance, sale and
delivery of the Securities by the Company to the Underwriters
have been obtained or made;
(viii) the Registration Statement has become
effective under the Securities Act; and, to the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted under the Securities
Act;
(ix) the statements in the Prospectus under the
captions "Description of the Debt Securities" and "Description
of the Debentures", insofar as such statements constitute a
summary of the documents referred to therein, fairly present
the information called for with respect to such documents; and
(x) such counsel (A) is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial
statements and financial data included therein as to which
such counsel need express no opinion or belief) complied as to
form when filed with the Commission in all material respects
with the Exchange Act, (B) does not believe that (except for
the financial statements and financial data included therein
and the Form T-1 of the Trustee, as to which such counsel need
express no opinion or belief) any part of the registration
statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities
Act relating to the Securities, when such part became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(C) is of the opinion that the Registration Statement and the
Prospectus as of the date of the Prospectus (except for the
financial statements and financial data included therein and
the Form T-1 of the Trustee, as to which such counsel need
express no opinion or belief) comply as to form in all
material respects with the requirements of the Securities Act
and the Trust Indenture Act and (D) does not believe that
(except for the financial statements and financial data
included therein and the Form T-1 of the Trustee, as to which
such counsel need express no belief) the Registration
Statement and the Prospectus, on the effective date of the
Registration Statement, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as amended or
supplemented, if applicable, contains any untrue statement of
a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of South Carolina, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions
(reasonably satisfactory to Counsel for the Underwriters) of other counsel
reasonably acceptable to Counsel for the Underwriters, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of public officials. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to the matters to be
covered in subparagraph (x) above counsel may state their opinion and belief is
based upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto (other than the
documents incorporated by reference therein) and review and discussion of the
9
contents thereof (including the documents incorporated by reference therein) but
is without independent check or verification except as specified; and that they
express no opinion or belief as to the statement of the eligibility of the
Trustee under the Indenture.
(g) on the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter, dated such date, in form and
substance satisfactory to the Representatives, containing statements
and information of the type customarily included in accountants
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus;
(h) the Representatives shall have received on and as of the
Closing Date an opinion of Counsel for the Underwriters with respect to
the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(i) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein; provided
that the foregoing indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and if a copy of the Prospectus (as so amended or supplemented, but
excluding the documents incorporated by reference therein), if required by law
to have been furnished to such person at or prior to the written confirmation of
the sale of such Securities to such person, shall not have been so furnished.
Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
10
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on Schedule I hereto and any such separate
firm for the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company or authorized representatives
shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
11
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriter's obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or the occurrence of any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
12
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities as set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriter or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, form or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by the first of the named Representatives set forth
in Schedule I hereto alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
at the address set forth in Schedule II hereto. Notices to the Company shall be
given to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Vice President - Finance and Chief
Financial Officer.
13
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
Sonoco Products Company
By:
--------------------------------
Name:
Title:
Accepted: [ ], 200
[ ]
Acting severally on behalf on themselves and the several Underwriters listed in
Schedule II hereto.
By:
---------------------------------------
By:
---------------------------------------
Name:
Title:
14
SCHEDULE I
Representatives:
Underwriting Agreement dated: [ ], 200
Registration Statement No[s].: 333-[ ]
[333-12701]
Title of Securities:
Aggregate principal amount:
Purchase Price:
Price to Public:
Indenture: Indenture dated as of June 15,
1991 between the Company and
The Bank of New York, as
Successor Trustee
Maturity:
Interest Rate:
Interest Payment Dates:
Optional Redemption Provisions:
Sinking Fund Provisions:
Other Provisions:
Book Entry:
Closing Date and Time of Delivery:
Counsel for the Underwriters:
Closing Location:
15
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
----------- ---------------
Total: . . . . . . . . . . . . . . .
