To the Managers named in Schedule I hereto for
the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Sanderson Farms, Inc., a Mississippi corporation (the “Company”), proposes to issue and sell
to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you are
acting as managers (the “Managers”), the number of shares of its common stock, $1.00 par value per
share, set forth in Schedule I hereto (the “Firm Shares”). The Company also proposes to issue and
sell to the several Underwriters not more than the number of additional shares of its common stock,
$1.00 par value per share, set forth in Schedule I hereto (the “Additional Shares”) if and to the
extent that you, as Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock, $1.00 par value per share, of the
Company granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “Shares.” The shares of common stock, $1.00 par
value per share, of the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to the securities (the “Shelf Securities”), including the Shares,
to be issued from time to time by the Company. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430 B under the Securities Act
of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration
Statement”, and the related prospectus covering the Shelf Securities dated October 9, 2008 in the
form first used to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to the Shares in the form first
used to confirm sales of the Shares (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any
preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405
under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in Schedule I hereto, and “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction to any person. As used herein,
the terms “Registration Statement,”“Basic Prospectus,”“preliminary prospectus,”“Time of Sale
Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein. The terms “supplement,”“amendment,” and “amend” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or free writing prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time
of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the
offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, 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, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any untrue statement of a
material fact or omit
2
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 (vii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly
for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital
3
stock of each subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may (i) have previously been made
or attained, (ii) be required under the Securities Act or Exchange Act, and which will be made or
attained on or prior to the Closing Date (as defined below) and (iii) be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as
a whole, from that set forth in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of the Company or any of
its subsidiaries is subject (i) other than proceedings accurately described in all material
respects in the Time of Sale Prospectus and proceedings that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the
4
Company to perform its obligations under this Agreement or to consummate the offering and sale
of the Shares and the application of the proceeds thereof as described in the Time of Sale
Prospectus or (ii) that are required to be described in the Registration Statement or the
Prospectus and are not so described; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(o) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them which is material to
the business of the Company and its subsidiaries taken as a whole, in each case free and clear of
all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus and
the Prospectus or such as would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole and such as do not materially interfere
with the use made and proposed to be made of such property by the Company and its subsidiaries; any
real property and buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material to the
Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed
to be made of such property and buildings by the Company and its subsidiaries, in each case except
as described in the Time of Sale Prospectus and the Prospectus.
(p) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, all
material patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names currently employed by them in connection
with the business now operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of others with respect to
any of the foregoing except, in each of the foregoing cases, those failures to own or possess or
acquire and those notices of infringement which, individually or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
5
(q) No material labor dispute with the employees of the Company or any of its subsidiaries
exists that would have a material adverse effect on the Company and its subsidiaries taken as a
whole, except as described in the Time of Sale Prospectus and the Prospectus; and, to the knowledge
of the Company, there is no existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or contractors that would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(r) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(s) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(t) The Company and its subsidiaries possess all licenses, certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and none of the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, would have a material
adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the
Time of Sale Prospectus and the Prospectus.
(u) There are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the Registration Statement.
employee, agent or representative of the Company or of any of its subsidiaries or affiliates,
has taken any action in furtherance of an offer, payment, promise to pay, or authorization or
approval of the payment or giving of money, property, gifts or anything else of value, directly or
indirectly, to any “government official” (including any officer or employee of a government or
government-owned or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office) to influence unlawfully official action or secure
an unlawful advantage; and the Company and its subsidiaries and affiliates have conducted their
businesses in compliance with the Foreign Corrupt Practices Act, and have instituted and maintain
and will continue to maintain policies and procedures designed to promote and achieve compliance
with such laws and with the representation and warranty contained herein.
(w) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, and the applicable anti-money laundering statutes of jurisdictions where the Company
and its subsidiaries conduct business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened, except to the extent that any failure to be in
compliance with the Anti-Money Laundering Laws or any such action, suit or proceeding with respect
to the Anti-Money Laundering Laws would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(x) The Company represents that neither the Company nor any of its subsidiaries (collectively,
the “Entity”) or any director, officer, or, to the knowledge of the Entity, any employee, agent,
affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is
owned or controlled by a Person that is:
(i) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”)
(collectively, “Sanctions”), nor
(ii) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
7
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule II hereto
opposite its name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to the number of
Additional Shares set forth in Schedule I hereto at the Purchase Price, provided, however, that the
amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share
equal to any dividends declared by the Company and payable on the Firm Shares but not payable on
such Additional Shares. You may exercise this right on behalf of the Underwriters in whole or from
time to time in part by giving written notice not later than 30 days after the date of the
Prospectus. Any exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Each purchase date must be
at least one business day after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after this Agreement has become
effective as in your judgment is advisable. The Company is further advised by you that the Shares
are to be offered to the public upon the terms set forth in the Prospectus.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City on the closing date and time set forth in
Schedule I hereto, or at such other time on the same or such later date, not later than the fifth
business day thereafter, as may be designated in writing by you. The time and date of such payment
are hereinafter referred to as the “Closing Date.”
8
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City on the date specified in the corresponding notice described
in Section 2 or at such other time on the same or on such later date, in any event not later than
the tenth business day thereafter, as may be designated in writing by you.
The Firm Shares and the Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
9
(c) The Underwriters shall have received on the Closing Date an opinion of (i) Fishman Haygood
Phelps Walmsley Willis & Swanson, L.L.P., outside counsel for the Company, to the effect set forth
in Exhibit B hereto, (ii) Wise Carter Child & Caraway, P.A., outside counsel for the Company, to
the effect set forth in Exhibit C hereto and (iii) Wachtell, Lipton, Rosen & Katz LLP, special
outside counsel for the Company, to the effect set forth in Exhibit D hereto, each dated the
Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Davis Polk &
Wardwell LLP, counsel for the Underwriters, dated the Closing Date, to the effect set forth in
Exhibit E hereto.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and certain shareholders, all executive officers and all directors of the Company relating to sales
and certain other dispositions of shares of Common Stock or certain other securities, delivered to
you on or before the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
10
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action, other than at the request of a Manager, that would result in an
Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the
Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that the statements in
the Time of Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist 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 (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or
if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at
11
its own expense, to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder. Compliance with Rule 158 under the Securities Act shall satisfy this
covenant.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Shares (within the time required by Rule 456
(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer taxes payable in connection with the transfer and delivery of the Shares to
the Underwriters, (iii) the reasonable cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the Shares under state securities
laws and all expenses in connection with the qualification of the Shares for offer and sale under
state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable
fees and disbursements of outside counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of outside counsel to the Underwriters incurred in
connection with the review and
12
qualification of the offering of the Shares by the Financial Industry Regulatory Authority,
(v) all costs and expenses incident to listing the Shares on The NASDAQ Stock Market, (vi) the cost
of printing certificates representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken with the Company’s consent in connection with the
marketing of the offering of the Shares, including, without limitation, expenses associated with
the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, (ix) the document production
charges and expenses associated with printing this Agreement and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(j) To prepare a final term sheet relating to the offering of the Shares, containing only
information that describes the final terms of the offering in a form consented to by the Managers,
and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the offering of the
Shares.
The Company also covenants with each Underwriter that, without the prior written consent of
the Managers identified in Schedule I, it will not, during the restricted period set forth in
Schedule I hereto, (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (3) file any registration statement with the Commission relating to the offering of
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock. The foregoing sentence shall not apply to (a) the Shares to be sold hereunder, (b)
the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof of which the Underwriters have been
13
advised in writing or (c) issuances of Common Stock pursuant to the Company’s Stock Option
Plan or Stock Incentive Plan or to the Employee Stock Ownership Plan of the Company and its
subsidiaries. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed by this agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company shall promptly notify Morgan
Stanley & Co. Incorporated and J.P. Morgan Securities Inc. of any earnings release, news or event
that may give rise to an extension of the initial 90-day restricted period.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, 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 and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, 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 such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the
14
Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, the indemnified parties shall have the right to retain their own counsel, but
the fees and expenses of such counsel shall be at the expense of such indemnified parties unless
(i) the indemnifying parties and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and one or more indemnified parties and representation of all
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings 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 such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the Managers
authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party 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 party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party
15
under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party 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 Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and
of the Underwriters on the other hand 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 hand in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts and commissions received by
the Underwriters bear to the aggregate initial public offering price of the Shares set forth in the
Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in
proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares 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 remedies provided for in this Section 8 are not exclusive
16
and shall not limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained 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, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Shares.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (a)
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, The NASDAQ Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(b) trading of any securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (c) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (d) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or (e) there shall
have occurred any outbreak or escalation of hostilities, or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (e), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
17
any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased
on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm
Shares 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
you 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, in the
Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased
on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date
or (ii) purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
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, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company, its directors or officers, employees,
18
shareholders or any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the Underwriters owe the Company only those
duties and obligations set forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
[The remainder of this page is intentionally left blank]
Copies of the prospectus supplement and accompanying prospectus relating to the offering, when
available, may be obtained from Morgan Stanley & Co. Incorporated, 180 Varick Street, 2nd Floor,
New York, New York10014, Attention: Prospectus Department or by email at
prospectus@morganstanley.com, or from J.P. Morgan, c/o Broadridge Financial Solutions, 1155 Long
Island Ave, Edgewood, NY11717.
I-3
SCHEDULE II
Number of Firm
Shares To Be
Underwriter
Purchased
Morgan Stanley & Co. Incorporated
700,000
J.P. Morgan Securities Inc.
700,000
BMO Capital Markets
400,000
Stephens Inc.
200,000
Total:
2,000,000
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
_____________, 2010
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
c/o
Morgan Stanley & Co. Incorporated
1585 Broadway New York, NY10036
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. Incorporated (“Morgan Stanley”) and J.P.
Morgan Securities Inc. (“J.P. Morgan”) propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Sanderson Farms, Inc., a Mississippi corporation (the “Company”),
providing for the public offering (the “Public Offering”) by the several Underwriters, including
Morgan Stanley and J.P. Morgan (the “Underwriters”),
of ___ shares (the “Shares”) of the common
stock, $1.00 par value per share, of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the
period (the “restricted period”) commencing on the date hereof and ending 90 days after the date
(the “Prospectus Date”) of the final prospectus relating to the Public Offering (the “Prospectus”),
(1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the Prospectus Date, provided that no filing
under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall
be required or shall be voluntarily made in connection with subsequent sales of Common Stock or
other securities
A-1
acquired in such open market transactions other than a filing on Form 5 made after the
expiration of the restricted period; (b) transfers of shares of Common Stock or any security
convertible into Common Stock as a bona fide gift or by will or the laws of intestacy; (c) the
establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of
shares of Common Stock, provided that such plan does not provide for the transfer of Common Stock
during the restricted period; (d) in the case of (A) a stock option expiring during the restricted
period or (B) restricted stock vesting under any Company incentive plan during the restricted
period, the transfer by the undersigned to the Company of shares of Common Stock issuable upon the
exercise of such stock option or vesting of such restricted stock or otherwise pursuant to
procedures permitted by the relevant Company incentive plan, in an amount not exceeding the amount
necessary to permit the “cashless” exercise of such stock option or vesting of such restricted
stock and payment of any tax liabilities associated therewith; (e) transfers to affiliates of the
undersigned; (f) liquidation transfers or distributions; (g) pledges to a pledgee or (h) transfers
by operation of law; provided that in the case of any transfer, distribution or pledge, as the case
may be, pursuant to clause (b), (e), (f) or (g) above, (x) each transferee, distributee or pledgee,
as the case may be, shall sign and deliver a lock-up letter substantially in the form of this
letter and (y) no filing under Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made
during the restricted period, other than a filing on Form 5 made after the expiration of the
restricted period. In addition, the undersigned agrees that, without the prior written consent of
Morgan Stanley and J.P. Morgan on behalf of the Underwriters, it will not, during the restricted
period, make any demand for or exercise any right with respect to, the registration of any shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common
Stock except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
A-2
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the Company or Morgan Stanley and
J.P. Morgan that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
The undersigned understands that (i) whether or not the Public Offering actually occurs
depends on a number of factors, including market conditions and (ii) any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation
between the Company and the Underwriters.
Very truly yours,
(Name)
(Address)
A-3
EXHIBIT B
MATTERS TO BE ADDRESSED IN THE OPINION OF FISHMAN
HAYGOOD PHELPS WALMSLEY WILLIS & SWANSON, L.L.P.,
OUTSIDE COUNSEL FOR THE COMPANY
1. Those portions of the Prospectus that appear under the heading “Underwriting” and purport
to describe provisions of this Agreement summarize such provisions accurately, in all material
respects.
2. Such counsel does not know of any contracts or other documents that are required to be
filed as exhibits to the Registration Statement that are not filed as required.
3. The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
4. To such counsel’s knowledge, the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not contravene any
agreement or other instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency, or court of the State of Louisiana having jurisdiction over the Company
or any subsidiary; and no consent, approval, authorization or order of, or qualification with, any
such governmental body or agency is required for the performance by the Company of its obligations
under this Agreement, except such as may (i) have previously been made or attained or (ii) be
required by the securities or Blue Sky laws of the various states (including Louisiana) in
connection with the offer and sale of the Shares.
5. To such counsel’s knowledge, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are required to be described
in the Registration Statement or the Prospectus, and are not so described.
In addition, such counsel shall state that they participated in the preparation of the
Registration Statement, Time of Sale Prospectus and the Prospectus, including the materials
incorporated therein by reference, and on the basis of the information they gained in the course of
performing the services referred to, but without independent investigation or inquiry, (A)(1) each
B-1
document filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale
Prospectus or the Prospectus (except for the financial statements and financial schedules and other
financial data and reports on internal controls included therein, as to all of which such counsel
need not express any opinion) appeared on its face to be appropriately responsive as of its filing
date in all material respects to the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and (2) the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and other financial data and reports
on internal controls included therein, as to all of which such counsel need not express any
opinion) appear on their face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations of the Commission
thereunder, and (B) nothing has come to the attention of such counsel that causes such counsel to
believe that (1) within the meaning of Section 11(a) of the Securities Act and regulations of the
Commission thereunder, any part of the Registration Statement, when such part became effective,
(except for the financial statements and financial schedules and other financial data and reports
on internal controls included therein or omitted therefrom, as to all of which such counsel need
not express any belief) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, (2) the Registration Statement or the Prospectus (except for the financial statements
and financial schedules and other financial data and reports on internal controls included therein
or omitted therefrom, as to all of which such counsel need not express any belief) on the date of
this Agreement 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, (3)
the Time of Sale Prospectus (except for the financial statements and financial schedules and other
financial data and reports on internal controls included therein or omitted therefrom, as to all of
which such counsel need not express any belief) as of the date of this Agreement or as amended or
supplemented, if applicable, as of the Closing Date contained or contains any untrue statement of a
material fact or omitted 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,
(4) the Prospectus (except for the financial statements and financial schedules and other financial
data and reports on internal controls included therein or omitted therefrom, as to all of which
such counsel need not express any belief) as amended or supplemented, if applicable, as of the
Closing Date 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 or (5) the Prospectus fails to describe any statute or regulation
that is required to be described therein.
The opinion of counsel for the Company shall be rendered to the Underwriters at the request of
the Company and shall so state therein. It may
B-2
state that the statements made in the preceding paragraph, (i) are made to such counsel’s
knowledge and solely for purposes of assisting the underwriters in establishing defenses under
applicable securities laws; (ii) may not be used, quoted, relied on or otherwise referred to by any
other person (including any person purchasing any securities from the underwriters); and (iii) are
subject to the following: (A) such counsel’s professional engagement did not include establishing
or confirming factual matters set forth in the Registration Statement, Time of Sale Prospectus or
Prospectus (including the materials incorporated by reference therein), nor have they undertaken to
do so; (B) many of the determinations required to be made in preparing such documents and materials
involve matters of a non-legal nature; and (C) such counsel assume no responsibility for the
accuracy, completeness or fairness of the statements contained in such documents and materials. It
may also state that the “knowledge” of such counsel (and such words as “known” or “know”) means
actual knowledge acquired by those attorneys of the firm, who have provided substantive
professional legal services to the Company, in providing those services.
B-3
EXHIBIT C
MATTERS TO BE ADDRESSED IN THE OPINION OF WISE CARTER
CHILD & CARAWAY, P.A., OUTSIDE COUNSEL FOR THE COMPANY
1. The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
2. Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
3. The statements relating to legal matters, documents or proceedings in the Registration
Statement in the first two paragraphs of Item 15 fairly summarize in all material respects such
matters, documents or proceedings.
4. The authorized capital stock of the Company conforms as to legal matters to the description
thereof contained under the caption “Description of Capital Stock” in each of the Time of Sale
Prospectus and the Prospectus.
5. All of the issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims.
6. The Shares have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
C-1
7. This Agreement has been duly authorized, executed and delivered by the Company.
9. The statements relating to legal matters, documents or proceedings included in the
Prospectus under the caption “Description of Capital Stock” fairly summarize in all material
respects such matters, documents or proceedings.
The opinion of counsel for the Company shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
C-2
EXHIBIT D
MATTERS TO BE ADDRESSED IN THE OPINION OF WACHTELL,
LIPTON, ROSEN & KATZ, SPECIAL OUTSIDE COUNSEL FOR THE
COMPANY
The discussion of certain material U.S. federal income tax consequences for non-U.S. holders
of the purchase, ownership and disposition of the Shares set forth in the Prospectus Supplement
under the caption “Material U.S. Federal Income Tax Consequences for Non-U.S. Holders,” insofar as
such discussion constitutes a summary of U.S. federal income tax law, is an accurate summary in all
material respects (subject to the assumptions, exceptions, limitations and qualifications described
herein and therein). For the absence of doubt, the opinion shall not address statements under such
caption relating to the Company’s belief that it is not, and anticipation that it will not become,
a “U.S. real property holding corporation” for U.S. federal income tax purposes.
D-1
EXHIBIT E
MATTERS TO BE ADDRESSED IN THE OPINION OF DAVIS POLK &
WARDWELL LLP, COUNSEL FOR THE UNDERWRITERS
1. The statements relating to legal matters, documents or proceedings included in the
Prospectus under the caption “Underwriting” fairly summarize in all material respects such matters,
documents or proceedings.
2. (A) the Registration Statement and the Prospectus (except for the financial statements and
financial schedules and other financial data included therein or omitted therefrom, as to which
such counsel need not express any opinion) appear on their face to be appropriately responsive in
all material respects to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, and (B) nothing has come to the attention of such counsel
that causes such counsel to believe that (1) the Registration Statement or the Prospectus (except
for the financial statements and financial schedules and other financial data included therein or
omitted therefrom, as to which such counsel need not express any belief) on the date of this
Agreement 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, (2) the
Time of Sale Prospectus (except for the financial statements and financial schedules and other
financial data included therein, as to which such counsel need not express any belief) as of the
date of this Agreement or as amended or supplemented, if applicable, as of the Closing Date
contained or contains any untrue statement of a material fact or omitted 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 or (3) the Prospectus (except for the financial
statements and financial schedules and other financial data included therein or omitted therefrom,
as to which such counsel need not express any belief) as amended or supplemented, if applicable, as
of the Closing Date 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.
With respect to the opinion in paragraph 2 above, Davis Polk & Wardwell LLP may state that
their opinions and beliefs are based upon their participation in the preparation of the preliminary
prospectus supplement, the free writing prospectuses identified as part of the Time of Sale
Prospectus in Schedule I hereto, the prospectus supplement and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review and discussion of the
contents of the Registration Statement, the Time of Sale Prospectus and the Prospectus (including
documents incorporated by reference), but are without independent check or verification, except as
specified.
E-1
Dates Referenced Herein and Documents Incorporated by Reference
