Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Form S-1 Registration Statement 115 718K
2: EX-1 Purchase Agreement 23 99K
3: EX-2 Asset Purchase Agreement 147 372K
4: EX-3.1 Restated Certificate of Incorporation 7 34K
5: EX-3.2 Gorges/Quik-To-Fix Foods, Inc. Bylaws 14 53K
6: EX-4 Indenture 208 778K
7: EX-10.1 Agreement for Investment Banking Services 4 23K
16: EX-10.10 Lease Agreement 17 63K
17: EX-10.11 Supply Agreement 35 104K
18: EX-10.12 Letter Agreement 2 15K
19: EX-10.13 Beef Pattie Agreement 2 15K
20: EX-10.14 Gas Sales Agreement Dated December 1, 1995 9 41K
21: EX-10.15 Contract for Industrial Gas Service 33 126K
22: EX-10.16 Gas Sales Agreement Dated June 1, 1995 17 57K
23: EX-10.17 Waste Water Treatment Agreement 1 13K
24: EX-10.18 Securities Purchase and Stockholders Agreement 77 302K
25: EX-10.19 Consulting Agreement 6 28K
8: EX-10.2 Transition Services Agreement 27 83K
26: EX-10.20 Bill of Sale - Tyson Foods, Inc. 4 19K
27: EX-10.21 Bill of Sale - Gorges Foodservice, Inc. 4 19K
28: EX-10.22 Employment Agreement - J. David Culwell 10 53K
29: EX-10.23 Employment Agreement - Hernando Aviles 11 53K
30: EX-10.24 Employment Agreement - Stuart A. Ensor 11 53K
31: EX-10.25 Employment Agreement - Robert M. Powers 11 53K
32: EX-10.26 Employment Agreement - Randall H. Collins 11 53K
33: EX-10.27 Employment Agreement - Richard E. Mitchell 11 53K
9: EX-10.3 Collection Agreement 9 39K
10: EX-10.4 Trademark Licence Agreement 7 32K
11: EX-10.5 Assumption Agreement 2 18K
12: EX-10.6 Credit Agreement 157 551K
13: EX-10.7 Registration Rights Agreement 24 108K
14: EX-10.8 Co-Pack Pricing Agreement 8 27K
15: EX-10.9 Agreement of Lease 4 20K
34: EX-23.1 Consent of Ernst & Young 1 12K
35: EX-25 Statement of Eligibility of Trustee 8 30K
36: EX-27 Article 5 Financial Data Schedule 2 14K
37: EX-99.1 Stock Option Agreement - J. David Culwell 15 53K
46: EX-99.10 Form of Letter to Clients 2 16K
47: EX-99.11 Form of Letter to Nominees 2 15K
38: EX-99.2 Stock Option Agreement - Richard E. Mitchell 15 53K
39: EX-99.3 Stock Option Agreement - Randall H. Collins 15 53K
40: EX-99.4 Stock Option Agreement - Robert M. Powers 15 53K
41: EX-99.5 Stock Option Agreement - Hernando Aviles 15 53K
42: EX-99.6 Stock Option Agreement - Stuart Alan Ensor 15 53K
43: EX-99.7 Gorges Holding Company 1996 Stock Incentive Plan 18 70K
44: EX-99.8 Letter of Transmittal 12 64K
45: EX-99.9 Notice of Guaranteed Delivery 3 18K
EX-1 — Purchase Agreement
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EXHIBIT 1
GORGES/QUIK-TO-FIX FOODS, INC.
$100,000,000
11 1/2% SENIOR SUBORDINATED NOTES DUE 2006
PURCHASE AGREEMENT
November 20, 1996
NationsBanc Capital Markets, Inc.
NatiousBank Corporate Center
100 North Tryon Street, NC1-007-07-01
Charlotte, North Carolina 28255-0001
Ladies and Gentlemen:
Gorges/Quik-to-Fix Foods, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell (the "Initial Placement") to NationsBanc Capital
Markets, Inc. (the "Initial Purchaser") $100,000,000 principal amount of its 11
1/2% Senior Subordinated Notes Due 2006 (the "Notes"). The Notes are to be
issued under an indenture (the "Indenture") to be dated as of the Closing Date
(as defined below) between the Company and IBI Schroder Bank & Trust Company, as
trustee (the "Trustee"). The Initial Placement is to occur concurrently with,
and is conditioned upon, (i) the consummation of the acquisition (the
"Acquisition") by the Company of the Gorges/Quik-to-Fix Foods operations (the
"Business") of Tyson Foods, Inc., a Delaware corporation ("Tyson"), pursuant to
an asset purchase agreement dated as of October 17, 1996 (the "Asset Purchase
Agreement") among Tyson, Gorges Foodservice, Inc., a Texas Corporation and Tyson
Holding Company, a Delaware corporation, and the Company, (ii) the execution of,
and initial borrowings under the Credit Agreement, to be executed and delivered
on or prior to the date on which the Notes are issued (the "Credit Agreement")
among the Company, Gorges Holding Corporation ("GHC"), as guarantor, NationsBank
of Texas, N.A. as agent and lender and the other lenders named therein
(collectively, the "Banks") and (iii) the receipt by the Company of a $45
million equity contribution (the "Equity Contribution") from GHC. This
Agreement, the registration rights agreement, to be dated the Closing Date,
between the Initial Purchaser and the Company (the "Registration Rights
Agreement"), the Indenture, the Asset Purchase Agreement, the Transition
Services Agreement to be dated November 25, 1996 (the "Transition Services
Agreement") between Tyson and tile Company and the Credit Agreement are
hereinafter collectively referred to as the "Transaction Documents."
The sale of the Notes to the Initial Purchaser will be made without
registration of the Notes under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon certain exemptions from the registration
requirements of the Securities Act. You
have advised the Company that you will offer and sell the Notes purchased by you
hereunder in accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum, dated November 4, 1996 (the "Preliminary
Memorandum"), and a final offering memorandum, dated November 20, 1996 (the
"Final Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum
sets forth certain information concerning the Company and the Notes. 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 Notes by the Initial Purchaser. Unless stated to
the contrary, all references herein to the Final Memorandum are to the Final
Memorandum at the Execution Time (as defined below) and are not meant to include
any amendment or supplement, or any information incorporated by reference
therein, subsequent to the Execution Time.
1. Representations and Warranties. The Company represents and warrants
------------------------------
to the 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 light of the circumstances
under which they were made, not misleading. The Final Memorandum, at the
date hereof, does not and at the Closing Date will not (and any amendment
or supplement thereto, at the date thereof and at 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 light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company makes 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 by
or on behalf of the Initial Purchaser specifically for inclusion therein.
(b) Neither the Company nor any of its Affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D")), nor any
person acting on its or their behalf (other than the Initial Purchaser or
any of its Affiliates, as to whom each of the Company makes no
representation or warranty) 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 Notes under the
Securities Act.
(c) Neither the Company nor any of its Affiliates, nor any person
acting on its or their behalf (other than the Initial Purchaser or any of
its Affiliates, as to whom the Company makes no representation or warranty)
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 Notes.
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(d) Neither the Company nor any of its Affiliates has (i) taken,
directly or indirectly, any action designed to cause or result in, or that
has constituted or that might reasonably be expected to constitute,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Notes; or (ii) 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).
(e) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(f) It is not necessary in connection with the offer, sale and
delivery of the Notes in the manner contemplated by this Agreement and the
Final Memorandum to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(g) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(h) The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full power (corporate and
other) to own or lease its properties, conduct its business as described in
the Final Memorandum and enter into each Transaction Document and to carry
out all the terms and provisions of each Transaction Document to be carried
out by it, and is, or will be on or before the Closing Date, duly qualified
to do business as a foreign corporation and in good standing under the laws
of each jurisdiction that requires such qualification wherein it owns or
leases properties or conducts business, in each case giving effect to the
Acquisition, except in such jurisdictions in which the failure to so
qualify would not have a material adverse effect on (i) the business,
operations, properties, assets, liabilities, net worth, condition
(financial or otherwise) or prospects of the Company or (ii) the ability of
the Company to perform any of its material obligations under the
Transaction Documents or the Notes, in each case giving effect to the
Acquisition ("Material Adverse Effect"). The Company has no subsidiaries.
(i) The capital stock of the Company consists of 2,000 shares of
authorized common stock, $.01 par value, of which 1,000 shares were
outstanding on November 20, 1996, and all of which will be issued and
outstanding upon completion of the Equity Contribution. All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
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(j) This Agreement has been duly authorized by all necessary
corporate action of the Company, has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, (i)
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally from time to time in effect ("Bankruptcy Law") and the
application of equitable principles in any action, legal or equitable
("Equity") and (ii) except to the extent that rights to indemnity and
contribution thereunder may be limited by federal or state securities laws
or the public policy underlying such laws. Each of the other Transaction
Documents has been, or will be on or before the Closing Date, duly
authorized by all necessary corporate action of the Company, has been, or
will be on or before the Closing Date, duly executed and delivered by the
Company, and constitutes, or will constitute on or before the Closing Date,
a legal, valid and binding obligation of the Company, enforceable against
the Company, in accordance with its terms, (i) subject, as to enforcement
of remedies, to applicable Bankruptcy Law and Equity and (ii) except to the
extent that rights to indemnity and contribution thereunder may be limited
by federal or state securities laws or the public policy underlying such
laws. The descriptions of the Indenture, the Registration Rights Agreement,
the Credit Agreement and the Notes contained in the Final Memorandum fairly
and accurately summarize the Indenture, the Registration Rights Agreement,
the Credit Agreement and the Notes in all material respects.
(k) The Notes have been duly and validly authorized by all necessary
corporate action of the Company for issuance and sale pursuant to this
Agreement and, when executed, authenticated (assuming due authentication by
the Trustee), issued and delivered in accordance with the provisions of the
Indenture and paid for by the Initial Purchaser as provided in this
Agreement, will constitute the legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject, as to enforcement of
remedies, to applicable Bankruptcy Law and Equity.
(l) (A) The issuance, offering and sale of the Notes to the Initial
Purchaser by the Company pursuant to this Agreement and the compliance by
the Company with the other provisions of this Agreement, (B) the compliance
by the Company with the other Transaction Documents, and (C) the
consummation of the other transactions herein and therein contemplated (i)
do not require the consent, approval, authorization, registration,
qualification or order of or with any court or governmental agency or body,
except such as have been obtained (including, without limitation, under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"Hart-Scott-Rodino Act")) and such as may be required under state
securities or blue sky laws or under the Securities Act or the Trust
Indenture Act of 1939 (the "Trust Indenture Act") in connection with a
registration under the Securities Act pursuant to the Registration Rights
Agreement or (ii) do not conflict with, result in a breach or violation of,
or
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constitute a default under the charter documents or by-laws of the Company
or any of the terms and provisions of any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company is a
party or by which the Company or any of its properties is bound or any
statute, judgment, decree, order, rule or regulation of any court,
regulatory body, administrative agency, governmental body or arbitrator
applicable to the Company, in each case giving effect to the Acquisition
and except, in the case of clauses (B) and (C) above, as would not have a
Material Adverse Effect.
(m) The historical financial statements (including the notes thereto)
of the Business included in the Final Memorandum comply as to form in all
material respects with the requirements applicable to registration
statements on Form S-1 under the Securities Act and fairly present in all
material respects the financial position of the Business and the results of
operations and cash flows as of the dates and periods therein specified.
Such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). Since the date of the most
recent financial statements included in the Final Memorandum, there has
been no change or development or event involving a prospective change
constituting a Material Adverse Effect, except as set forth in or
contemplated by the Final Memorandum (exclusive of any amendment or
supplement thereto). The unaudited pro forma financial statements of the
Company included in the Final Memorandum comply as to form in all material
respects with the requirements of the Securities Act; the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such pro forma statements; the assumptions described in the
notes to such pro forma statements provide a reasonable basis for
presenting the significant direct effects of the transactions contemplated
therein; and such pro forma adjustments give appropriate effect to those
adjustments, in each case, in accordance with Regulation S-X under the
Securities Act ("Regulation S-X").
(n) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting 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.
(o) The Company is not now, or, after giving effect to the issuance
of the Notes, and the execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby, will not be (i) insolvent, (ii) left with unreasonably small
capital with which to engage
-5-
in its anticipated businesses or (iii) incurring debts beyond its ability
to pay such debts as they become due. The Company is not in liquidation,
administration or receivership nor has any petition been presented for the
winding-up of the Company.
(p) (i) No ERISA Event (as defined below) has occurred, is planned
or is reasonably expected to occur and no condition or event currently
exists or currently is expected to occur that could result in any such
ERISA Event. The aggregate Underfunding (as defined below) with respect to
all Plans (as defined below) which have any Underfunding does not exceed
$500,000.
(ii) The Company has not incurred unsatisfied liabilities
in connection with withdrawals from Multiemployer Plans and Multiple
Employer Plans (each as defined below), if any, in excess of an aggregate
amount of $1,000,000. If the Company were to completely withdraw on the
date hereof from all Multiemployer Plans and Multiple Employer Plans to
which it is contributing or has an obligation to contribute, the Company
would not incur, directly or indirectly, liability in excess of an
aggregate amount of $1,000,000.
(iii) No labor dispute with the employees of the Company or
any of the subsidiaries of the Company exists or, to the best knowledge of
the Company, is threatened or imminent which is likely to result in a
Material Adverse Effect.
(iv) No event has occurred or failed to occur with respect
to a Plan sponsored, maintained or contributed to by an ERISA Affiliate
that is reasonably likely to have a Material Adverse Effect.
As used herein, the following terms shall have the respective meaning
ascribed to each below.
"Code" means the United States Internal Revenue Code of 1986, as
amended, and the regulations promulgated and the rulings issued thereunder.
"ERISA" means the United States Employee Retirement Income Security
Act of 1974, as amended, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) that would be treated together with the Company as a single
employer under Tide IV of ERISA or Section 302 of ERISA or Section 412 of
the Code.
"ERISA Event" means (i) the occurrence of a "reportable event"
described in Section 4043 of ERISA (other than a "reportable event" not
subject to the
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provision for 30-day notice or for which penalties have been waived under
PBGC Technical Update 95-3), or (ii) the provision or filing of a notice of
intent to terminate a Plan subject to Title IV of ERISA (other than in a
standard termination within the meaning of Section 4041 of ERISA) or the
treatment of a Plan amendment as a distress termination under Section 4041
of ERISA, or (iii) the institution of proceedings to terminate a Plan by
the Pension Benefit Guaranty Corporation, or (iv) the existence of any
"accumulated funding deficiency" or "liquidity shortfall" (within the
meaning of Section 302 of ERISA or Section 412 of the Code), whether or not
waived, or the filing of an application pursuant to Section 412(e) of the
Code or Section 304 of ERISA for any extension of an amortization period,
or (v) the receipt of notice by the Company that any Multiemployer Plan may
be terminated, partitioned or reorganized or that any Multiple Employer
Plan may be terminated, or (vi) the occurrence of any transaction which
might reasonably be expected to constitute grounds for the imposition of
liability under Section 4069 of ERISA.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA.
"Multiple Employer Plan" means an employee benefit plan described in
Section 4063 of ERISA.
"Plan" means an employee benefit plan, other than a Multiemployer
Plan, with respect to which the Company could be subject to any liability
under Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code.
"Underfunding" means, with respect to any Plan, the excess, if any, of
the "projected benefit obligations" (within the meaning of Statement of
Financial Accounting Standards 87) under such Plan over the fair market
value of the assets held under the Plan.
(q) (i) Except as otherwise disclosed in the Final Memorandum, the Company
is, or on or before the Closing Date will be, in compliance with all applicable
laws, statutes, ordinances, rules, regulations, orders, judgments, decisions,
decrees, standards, and requirements ("Legal Requirements") relating to: human
health and safety; pollution, management, disposal or release of any chemical
substance, product or waste; and protection, cleanup, remediation or corrective
action relating to the environment or natural resources ("Environmental Law");
(ii) Except as otherwise disclosed in the Final Memorandum, the
Company has obtained and is in compliance with the conditions of all
permits, authorizations, licenses, approvals, authorizations, and variances
necessary under any Environmental Law for the continued conduct of the
business of the Company in the manner now conducted ("Environmental
Permits");
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(iii) Except as otherwise disclosed in the Final Memorandum,
there are no conditions or circumstances, including but not limited to
pending changes in any Environmental Law (of which the Company has
knowledge after due inquiry and investigation) or Environmental Permit,
that are likely to interfere with the conduct of the business of the
Company in the manner now conducted or which would interfere with
compliance with any Environmental Law or Environmental Permit; and
(iv) Except as otherwise disclosed in the Final Memorandum,
there are no conditions or circumstances at, or arising out of, the
business, assets and properties of the Company or any formerly leased,
operated or owned businesses, assets or properties of the Company,
including but not limited to on-site or off-site disposal or release of any
chemical substance, product or waste, which may give rise to: (A)
liabilities or obligations for any cleanup, remediation or corrective
action under any Environmental Law, (B) claims arising under any
Environmental Law for personal injury, property damage, or damage to
natural resources, (C) liabilities or obligations incurred to enable the
Company or any subsidiary of the Company to comply with any Environmental
Law, or (D) fines or penalties arising under any Environmental Law;
except in each case for any noncompliance or conditions or circumstances that,
singly or in the aggregate, would not result in a Material Adverse Effect.
(r) No legal or governmental proceedings or investigations are
pending to which the Company is a party or to which the property of the
Company is subject that are not described in the Final Memorandum, and no
such proceedings or investigations, to the best knowledge of the Company,
have been threatened against the Company or with respect to any of their
respective properties, except in each case for such proceedings or
investigations that, if the subject of an unfavorable decision, ruling or
finding, would not, singly or in the aggregate, result in a Material
Adverse Effect.
(s) To the best of the Company's knowledge, and giving effect to the
Acquisition, the Company owns or otherwise possesses the right to use all
patents, trademarks, service marks, trade names and copyrights, all
applications and registrations for each of the foregoing, and all other
proprietary rights and confidential information used in the conduct of its
business as currently conducted; and the Company has not received any
notice, and is not otherwise aware, of any infringement of or conflict with
the rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(t) The Company possesses or will on or before the Closing Date
possess all certificates, authorizations and permits issued by the
appropriate
-8-
federal, state or foreign regulatory authorities necessary to conduct its
business, except where the failure to possess such certificates,
authorizations or permits, singly or in the aggregate, would not have a
Material Adverse Effect, and the Company has not 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 result in
a Material Adverse Effect.
Each certificate signed by any officer of the Company and delivered to
the Initial Purchaser or its counsel shall be deemed to be a representation and
warranty by the Company to the Initial Purchaser as to the matters covered
thereby.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, at a purchase price of 97 % of the principal amount
thereof, plus accrued interest, if any, from the Issue Date (as defined in the
Indenture) to the Closing Date, $100,000,000 in principal amount of Notes
3. Delivery and Payment. Delivery of and payment for the Notes
--------------------
shall be made at 10:00 AM, New York City time, on November 25, 1996, which date
and time may be postponed by agreement between the Initial Purchaser and the
Company (such date and time of delivery and payment for the Notes being herein
called the "Closing Date"), Delivery of the Notes shall be made to the Initial
Purchaser against payment by the Initial Purchaser of the purchase price thereof
to or upon the order of the Company by intrabank transfer payable in same day
funds or such other manner of payment as may be agreed by the Company and the
Initial Purchaser. Delivery of the Notes shall be made at such location as the
Initial Purchaser shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Notes shall be made at the
office of Alston & Bird ("Counsel for the Company"), One Atlantic Center, 1201
West Peachtree Street, Atlanta, Georgia. Certificates for the Notes shall be
registered in such names and in such denominations as the Initial Purchaser may
request not less than two full business days in advance of the Closing Date.
The Company agrees to have the Notes available for inspection,
checking and packaging by the Initial Purchaser in Atlanta, Georgia, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Offering of Notes. The Initial Purchaser represents and warrants to
-----------------
and agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell, any Notes
except (i) to those it reasonably believes to be qualified institutional
buyers (as defined in Rule 144A under the Securities Act) ("QIBs") or (ii)
to other institutional "accredited investors" (as defined in Rule
501(a)(1). (2), (3) or (7) of
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Regulation D) who provide to it and to the Company a letter in the form of
Exhibit A hereto. In connection with each sale pursuant to clause (i)
above, the Initial Purchaser has taken or will take reasonable steps to
ensure that the purchaser of such Notes is aware that such sale is being
made in reliance on Rule 144A.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Notes by means of any form of general
solicitation or general advertising (within the meaning of Regulation D).
5. Agreements. The Company agrees with the Initial Purchaser that:
----------
(a) The Company will furnish to the Initial Purchaser and to Cleary,
Gottlieb, Steen & Hamilton ("Counsel for the Initial Purchaser"), 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. The Company will pay the expenses of
printing or other production of all documents relating to the offering of
the Notes and will reimburse the Initial Purchaser for payment of the
required PORTAL filing fee.
(b) The Company will not amend or supplement the Final Memorandum
prior to the completion of the distribution of the Notes by the Initial
Purchaser, without the prior written consent of the Initial Purchaser.
(c) If at any time prior to the completion of the sale of the Notes
acquired by the Initial Purchaser pursuant to this Agreement (as determined
by the Initial Purchaser), 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 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
will promptly notify the Initial Purchaser of the same and, subject to the
requirements of paragraph (b) of this Section 5, will prepare and provide
to the Initial Purchaser pursuant to paragraph (a) of this Section 5 an
amendment or supplement that will correct such statement or omission or
effect such compliance.
(d) The Company will arrange for the qualification of the Notes for
sale by the Initial Purchaser under the laws of such jurisdictions as the
Initial Purchaser may designate and will maintain such qualifications in
effect so long as required for the sale of the Notes by the Initial
Purchaser. The Company will promptly advise the Initial Purchaser of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
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(e) The Company, whenever it publishes or makes available to the
public (by filing with any regulatory authority or securities exchange or
by publishing a press release or otherwise) any information that could
reasonably be expected to be material in the context of the issue of Notes
under this Agreement, shall promptly notify the Initial Purchaser as to the
nature of such information or event. The Company will likewise notify the
Initial Purchaser of (i) any decrease in the rating of the Notes or any
other debt securities of the Company by any nationally recognized
statistical rating organization (as defined in Rule 436(g)(2) under the
Securities Act) or (ii) any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change, as soon as the
Company becomes aware of any such decrease or notice. The Company will
also deliver to the Initial Purchaser, as soon as available and without
request, copies of its latest annual report and quarterly statement and any
report of its auditors thereon.
(f) The Company will not, and will not permit any of its Affiliates
to, resell any Notes that have been acquired by any of them, other than
pursuant to an effective registration statement under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement,
neither the Company nor any of its Affiliates, nor any person acting on its
or their behalf (other than the Initial Purchaser or any of its Affiliates,
as to whom the Company expresses no opinion) 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
Notes under the Securities Act.
(h) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf (other than the Initial Purchaser or any of
its Affiliates, as to whom the Company expresses no opinion) 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 Notes.
(i) So long as any of the Notes are "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Act, the Company will
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 Securities
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.
(j) The Company will cooperate with the Initial Purchaser and use its
best efforts to permit the Notes that are sold to QIBs to be eligible for
clearance and settlement through The Depository Trust Company.
-11-
(k) The Company will conduct its operations in a manner that will not
subject the Company to registration as an investment company under the
Investment Company Act.
6. Conditions to the Obligations of the Initial Purchaser. The
------------------------------------------------------
obligations of the Initial, Purchaser to purchase the Notes shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein at the date and time that this
Agreement is executed and delivered by the parties hereto (the "Execution Time")
and the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to the Initial Purchaser the
opinion of Counsel for the Company, dated the Closing Date, in form and
substance satisfactory to the Initial Purchaser.
(b) The Initial Purchaser shall have received from Counsel for the
Initial Purchaser such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Notes, the Final Memorandum (as
amended or supplemented at the Closing Date) and other related matters as
the Initial Purchaser may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(c) The Company shall have furnished to the Initial Purchaser a
certificate of the Company, signed by James A. O'Donnell and Richard E.
Mitchell, dated the Closing Date, to the effect that the signers of such
certificates have carefully examined the Final Memorandum, any amendment or
supplement to the Final Memorandum, this Agreement and the Credit Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects 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;
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no change or
development or event involving a prospective change constituting a
Material Adverse Effect, except as set forth in or contemplated by the
Final Memorandum (exclusive of any amendment or supplement thereto);
and
(iii) all conditions to borrowings under the Credit Agreement
have been satisfied or waived.
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(d) At the Execution Time and at the Closing Date, Ernst & Young LLP
shall have furnished to the Initial Purchaser a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Initial Purchaser, confirming that they
are independent public accountants within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified Public
Accountants (the "AICPA") and stating in effect that:
(i) on the basis of a reading of the latest unaudited financial
information made available by Tyson for the 13 minor lines which
represent the Business; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) that would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
committees of the board of directors of Tyson; and inquiries of
certain officials of Tyson who have responsibility for financial and
accounting matters of the Business, as to transactions and events
subsequent to September 28, 1996, nothing came to their attention that
caused them to believe that with respect to the period subsequent to
September 28, 1996, there were any changes, at a specified date not
more than five business days prior to the date of the letter, in the
long-term debt or net current assets of the Business as compared with
the amounts shown on the September 28, 1996 balance sheet of the
Business included in the Final Memorandum, or for the period from
September 29, 1996 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in
sales, gross profit, operating income and earnings before taxes on
income, except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by Tyson as to the significance thereof unless said
explanation is not deemed necessary by the Initial Purchaser;
(ii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Business) set forth in the Final
Memorandum, including without limitation the information set forth
under the captions "Offering Memorandum Summary," "Summary Historical
and Pro Forma Condensed Financial Data," "Risk Factors," "Unaudited
Pro Forma Condensed Combined Financial Statements," "Selected
Historical Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business" and
"Management," in the Final Memorandum agrees with the accounting
records of the Business, excluding any questions of legal
interpretation; and
-13-
(iii) as to pro forma financial information,
(A) they have read the unaudited pro forma financial
information included in the Final Memorandum;
(B) they have inquired of certain officials of the Company who
have responsibility for financial and accounting matters as to the basis
for their determination of the pro forma adjustments and whether the
unaudited pro forma financial statements included in the Final Memorandum
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X;
(C) they have compared the historical financial information
included in the unaudited pro forma balance sheet and the unaudited pro
forma income statement in the Final Memorandum with the historical
information for the Business and found them to be in agreement;
(D) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the financial amounts in the
unaudited pro forma financial statements; and
(E) they have performed certain other specified procedures as
a result of which they determined that certain pro forma information of an
accounting, financial, or statistical nature set forth in the Final
Memorandum, including without limitation the information set forth under
the captions "Offering Memorandum Summary," "Summary Historical and Pro
Forma Condensed Financial Data," "Risk Factors," "Pro Forma
Capitalization," "Unaudited Pro Forma Financial Information," "Selected
Historical Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Description of Notes"
in the Offering Memorandum agrees to or can be derived from the pro forma
financial statements of the Company or the analysis completed in the
preparation of such pro forma financial statements, excluding any questions
of legal interpretation.
All references in this Section 6(d) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the date of the letter
or letters.
(e) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters referred
to in paragraph (d) of this Section 6, or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, giving effect to the Acquisition, the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Initial Purchaser, so material and
-14-
adverse as to make it impractical or inadvisable to market the Notes as
contemplated by the Final Memorandum.
(f) Subsequent to the respective dates as of which information is
given in the Final Memorandum and giving effect to the Acquisition, (i) the
Company shall not have incurred any material liability or obligation,
direct or contingent, or entered into any material transaction not in the
ordinary course of business; (ii) the Company shall not have purchased any
of its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (iii) there
shall not have been any material change in the capital stock of the Company
or in the short-term debt or long-term debt of the Company, except in each
case as described in or contemplated by the Final Memorandum.
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of the Notes by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(h) Each of the Transaction Documents (including any amendments
thereto) shall have been duly authorized, executed and delivered by each of
the parties thereto, and the Initial Purchaser shall have received copies
of each such Transaction Document (including any amendments thereto) as so
executed and delivered in the form provided to the Initial Purchaser on or
before the date hereof except for changes approved by the Initial Purchaser
or changes which do not materially affect the rights or obligations of the
Company.
(i) All conditions to borrowings under the Credit Agreement shall
have been satisfied, the initial borrowings under the Credit Agreement
shall have occurred concurrently with the closing of the sale of the Notes
hereunder as contemplated in the Final Memorandum and all representations
and warranties of the Company contained in the Credit Agreement shall be
true and correct in all material respects on the Closing Date as if made on
the Closing Date.
(j) On the Closing Date, there shall be no less than $21.5 million of
additional availability under the Credit Agreement (as defined in the
Indenture), after giving effect to the Acquisition and any borrowings under
the Credit Agreement.
(k) All applicable waiting periods (and any extensions thereof) under
the Hart-Scott-Rodino Act with respect to the consummation of the
Acquisition shall have expired or otherwise been terminated, and the
Acquisition shall have been consummated as contemplated in the Asset
Purchase Agreement on the Closing Date.
-15-
(1) The Initial Stockholders (as defined in the Indenture) shall have
executed a Securities Purchase and Stockholders Agreement with regard to
GHC in substantially the same form as provided to the Initial Purchaser
prior to execution of this Agreement, and the Equity Contribution shall
have be made concurrently with the sale of the Notes in the same manner as
described in the Final Memorandum.
(m) The Company shall have executed employment contracts with each of
Richard E. Mitchell, Randall H. Collins, Robert M. Powers, Stuart Alan
Ensor, Hernando Aviles and J. David Culwell in a form reasonably
satisfactory to the Initial Purchaser.
(n) The Company shall have been advised by the National Association
of Securities Dealers, Inc. (the "NASD") PORTAL Market ("PORTAL") that the
Notes have been designated PORTAL-eligible securities in accordance with
the rules and regulations of the NASD.
(o) Prior to the Closing Date, the Company shall have furnished to
the Initial Purchaser such further information, certificates and documents
as the Initial Purchaser may reasonably request.
If any of the conditions specified in this Section 6 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 Initial Purchaser and Counsel for the Initial Purchaser,
this Agreement and all obligations of the Initial Purchaser hereunder may be
canceled at the Closing Date by the Initial Purchaser. Notice of such
cancellation shall be given to the Company in writing or by telephone or by
telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered
at the office of Counsel for the Company on the Closing Date.
7. Reimbursement of Expenses; Fees. The Company will (i) whether or not
-------------------------------
the sale of the Notes provided for herein is consummated, pay all expenses
incident to the performance of its obligations under the offering documents,
including the fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Preliminary Memorandum, the
Final Memorandum, all amendments thereof and supplements thereto, this
Agreement, the Registration Rights Agreement and all other documents relating to
the offering of the Notes, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including fees of counsel
incurred in compliance with Section 5(d), the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes, the fees and expenses,
if any, incurred in connection with the admission of the Notes for trading in
the PORTAL system and (ii) only in the event the
-16-
sale of the Notes provided for herein is not consummated, reimburse the Initial
Purchaser as requested for all reasonable out-of-pocket expenses incurred by the
Initial Purchaser in connection with the proposed purchase and resale of the
Notes.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless, to the fullest extent lawful, the Initial Purchaser, the
directors, officers, employees and agents of the Initial Purchaser and each
person who controls the Initial Purchaser within the meaning of either the
Securities Act or the Securities Exchange Act of 1934 (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 Securities 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
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, the Final Memorandum or any information provided by the Company to
any holder or prospective purchaser of Notes pursuant to Section 5(i), 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 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 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 or 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 the Initial Purchaser
specifically for inclusion therein; and, provided, further, that the Company
-------- -------
will not be liable in any such case if a copy of the Preliminary Memorandum or
the Final Memorandum (including any amendment or supplement thereto delivered to
the Initial Purchaser prior to the date such Preliminary Memorandum or Final
Memorandum was sent or given to such purchaser) was not sent or given by or on
behalf of the Initial Purchaser to such person at or prior to the written
confirmation of the sale of Notes to such person, and if the Preliminary
Memorandum or Final Memorandum (including any amendment or supplement thereto
delivered to the Initial Purchaser prior to the date such Preliminary Memorandum
or Final Memorandum was sent or given to such purchaser) cured the defect giving
rise to such losses, claims, damages, liabilities or expenses. This indemnity
agreement will be in addition to any liability that the Company may otherwise
have.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, officers, employees, agents and each person who controls
the Company within the meaning of either the Securities Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to the Initial
-17-
Purchaser, but only with reference to written information furnished to the
Company by or on behalf of the Initial Purchaser 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 that the Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the headings "Notice to Investors" and "Plan of Distribution" in
the Preliminary Memorandum and the Final Memorandum constitute the only
information furnished in writing by or on behalf of the Initial Purchaser for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 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 8, notify the indemnifying party in writing of the commencement thereof;
but the failure 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 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 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 (it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time for such indemnified persons), (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 or an indemnified party will
not, without the prior written consent (which shall not be unreasonably
withheld) of the indemnified parties or the indemnifying parties, as the case
may be, 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
-18-
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties or the indemnifying parties, as the case may be, are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party or indemnifying party, as the case may be, 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 8 is unavailable or insufficient to hold harmless an indemnified
party for any reason, the Company, on the one hand, and the Initial Purchaser,
on the other, 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, on the one hand, and the Initial Purchaser, on the other, may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Initial Purchaser, on the
other, from the offering of the Notes; provided, however, that in no case shall
-------- -------
the Initial Purchaser be responsible for any amount in excess of the purchase
discount or commission applicable to the Notes purchased by the Initial
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company, on the one hand, and the
Initial Purchaser, on the other, shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, on the one hand, and of the Initial Purchaser, on the
other, in connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Initial Purchaser shall be deemed to be equal to the total purchase discounts
and commissions received by the Initial Purchaser from the Company in connection
with the purchase of the Notes hereunder. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the Company or the Initial Purchaser
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Initial Purchaser agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities, expenses or judgments referred to in the
immediately preceding paragraph shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11l(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Initial Purchaser within the meaning of either the Securities Act
or the Exchange Act and each director, officer, employee and agent of the
Initial Purchaser shall have the same rights to contribution as the Initial
Purchaser, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and
-19-
each officer, director, employee and agent of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination by notice
-----------
given to the Company prior to delivery of and payment for the Notes, if prior to
such time there shall have occurred (i) any change in the market for
subordinated debt similar in nature to the Notes or (ii) any disruption of or
change in financial, banking or capital market conditions generally, the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Initial Purchaser, so material or adverse as to make it
impracticable or inadvisable to proceed with the offering or delivery of the
Notes as contemplated by the Final Memorandum.
10. Presentations and Indemnities to Survive. The respective agreements,
----------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Initial Purchaser 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 Purchaser or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
7 and 8 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Initial Purchaser, will be
mailed, delivered or telecopied and confirmed to it at NationsBank Corporate
Tower, 100 North Tryon Street, NC1-007-07-01, Charlotte, North Carolina 28255-
0001, Telecopy No.: (704) 388-9941; or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to them at c/o CGW Southeast Partners,
III, L.P., Suite 210, Twelve Piedmont Center, Atlanta, Georgia 30305, Attention:
William A. Davies and James A. O'Donnell.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and assigns and
the officers and directors and controlling persons referred to in Section 8
hereof, and, except as expressly set forth in Section 5(i) hereof, nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm, corporation or other entity any legal or equitable
right, remedy or claim under or in respect to this Agreement or any provisions
herein contained. No purchaser of Notes from the Initial Purchaser shall be
deemed to be a successor merely by reason of such purchase.
13. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
-20-
14. Business Day. For purposes of this Agreement, "business day" means
------------
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
-21-
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 between the
Company and the Initial Purchaser.
Very truly yours,
GORGES/QUICK-TO-FIX FOODS, INC.
By: /s/ William A. Davies
--------------------------------
Name: William A. Davies
Title: Vice President and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ William Caperson
-------------------------------
Name: William Caperson
Title: Vice President
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 between the
Company and the Initial Purchaser.
Very truly yours,
GORGES/QUICK-TO-FIX FOODS, INC.
By: /s/ William A. Davies
--------------------------------
Name: William A. Davies
Title: Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
data first above written.
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ William Caperson
-------------------------------
Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/22/97 | | | | | | | None on these Dates |
| | 11/25/96 | | 1 | | 9 |
| | 11/20/96 | | 1 | | 3 |
| | 11/4/96 | | 2 |
| | 10/17/96 | | 1 |
| | 9/29/96 | | 13 |
| | 9/28/96 | | 13 |
| List all Filings |
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