Tyson Foods, Inc.
$350,000,000
Medium-Term Notes
Due from 9 months to 30 Years from Date of Issue
Distribution Agreement
July 20, 1995
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
World Financial Center
250 Vesey Street
New York, New York 10281
BA Securities, Inc.
231 S. LaSalle
Chicago, Illinois 60697
A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
NatWest Capital Markets Limited
135 Bishopsgate
London EC2M 3XT
England
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Dear Sirs:
Tyson Foods, Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale
from time to time by the Company of its Medium-Term Notes due from 9 months
to 30 years from date of issue (the "Securities") in an aggregate initial
offering price of up to $350,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies), as such amount shall be
reduced by the aggregate initial offering price of any other debt
securities issued by the Company after the date hereof, whether within or
without the United States ("Other Securities") pursuant to the registration
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statement referred to below, and agrees with each of you (individually, an
"Agent", and collectively, the "Agents", which term shall include any
additional agents appointed pursuant to Section 13 hereof) as set forth in
this Agreement. The Securities will be issued under an indenture dated as
of June 1, 1995 (the "Indenture") between the Company and The Chase
Manhattan Bank, N.A., as Trustee (the "Trustee"). The Securities shall
have the maturities, interest rates, redemption provisions, if any, and
other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Securities will be issued,
and the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions stated herein and to the
reservation by the Company of the right (A) to sell Securities directly to
investors (other than broker-dealers) in those jurisdictions in which the
Company is so permitted and (B) to accept (but not solicit) offers to
purchase Securities from time to time through one or more additional agents
or dealers, acting as either principal or agent, on substantially the same
terms as those applicable to sales of Securities to or through the Agents
pursuant to this Agreement, the Company hereby (i) appoints the Agents as
the exclusive agents of the Company for the purpose of soliciting and
receiving offers to purchase Securities from the Company by others pursuant
to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Securities directly to
any Agent as principal, it will enter into a separate agreement (each such
agreement a "Terms Agreement"), substantially in the form of Exhibit A
hereto, relating to such sale in accordance with Section 2(b) hereof. In
connection with the Company's reservation pursuant to clause (B) above, it
is understood that the Company may respond to inquiries and requests for
information from any such agents or dealers.
The Company has prepared and filed a registration statement on
Form S-3 (No. 33-58177) in respect of the Securities with the Securities
and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities
Act"). The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act supplements to the
prospectus included in the Registration Statement that will describe
certain terms of the Securities. The Registration Statement, including the
exhibits thereto, as amended to the Commencement Date (as hereinafter
defined) is hereinafter referred to as the "Registration Statement" and the
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement or supplements (each a
"Prospectus Supplement") specifically relating to the Securities in the
form filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 under the Securities Act is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act") on or
before the date of this Agreement or the date of the Basic Prospectus,
anypreliminary prospectus or the Prospectus, as the case may be; and any
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reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein.
1. Representations. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date (as hereinafter
defined), as of each date on which the Company accepts an offer to purchase
Securities (including any purchase by an Agent as principal pursuant to a
Terms Agreement or otherwise), as of each date the Company issues and sells
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations and warranties shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus comply and, as amended or supplemented, if
applicable, will comply, in all material respects with the Securities
Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"); each part of the Registration Statement filed with
the Commission pursuant to the Securities Act, 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;
and the Prospectus did not, as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing by such
Agent expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all
materialrespects to the requirements of the Exchange Act, and none of
such documents, when they were filed with the Commission, contained an
6
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein; and the pro forma financial information, and the
related notes thereto, if any, included or incorporated by reference
in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and
the Exchange Act, as applicable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change, or any development known by the Company
(after diligent inquiry) involving a prospective material adverse
change, in or affecting the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus; and
except as set forth, incorporated by reference or contemplated in the
Prospectus neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary
course of business) material to the Company and its subsidiaries taken
as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(f) each of the Company's subsidiaries that constitutes a
"significant subsidiary" within the meaning of Rule 1-02 of Regulation
S-X of the Commission (the "Material Subsidiaries") has been duly
incorporated and is validly existing as a corporation under the laws
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of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares
of capital stock of each Material Subsidiary of the Company have been
duly authorized and validly issued, are fully-paid and non-assessable,
and (except in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or indirectly,
free and clear of all liens, encumbrances, security interests and
claims;
(g) this Agreement and any applicable Terms Agreement has been
duly authorized, executed and delivered by the Company;
(h) the Securities have been duly authorized, and when issued
and delivered pursuant to this Agreement and any applicable Terms
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company, duly qualified under the Trust Indenture Act and constitutes
a valid and binding instrument of the Company; and the Securities of a
particular issuance of Securities and the Indenture will conform to
the descriptions thereof in the Prospectus as amended or supplemented
to related to such issuance of Securities;
(i) neither the Company nor any of its Material Subsidiaries is,
or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Material Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under the
Securities, the Indenture, this Agreement and any applicable Terms
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Material Subsidiaries is subject, nor will any
such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its Material Subsidiaries or any of their respective
properties; and no consent, approval, authorization, order,
8
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement, any applicable Terms Agreement or the
Indenture, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) other than as set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its Material Subsidiaries is or may be a
party or to which any property of the Company or any of its Material
Subsidiaries is or may be the subject which, if determined adversely
to the Company, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the business, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
(k) each of the Company and its Material Subsidiaries is in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
or the environment or imposing liability or standards of conduct
concerning any Hazardous Material (collectively, "Environmental
Laws"), except where such non-compliance with Environmental Laws could
not, singly or in the aggregate, reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as
a whole. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl, and (v) any pollutant or contaminant or
hazardous, dangerous, or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law;
(l) each of the Company and its Material Subsidiaries owns or
possesses the right to use the patents, patent licenses, trademarks,
service marks, trade names, copyrights and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the
"Intellectual Property") reasonably necessary to carry on the business
conducted by each as conducted on the date hereof, except to the
extent that the failure to own or possess the right to use such
Intellectual Property could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and, except as set
forth or incorporated by reference in the Registration Statement and
the Prospectus, neither the Company nor any Material Subsidiary has
9
received any notice of infringement of or conflict with asserted
rights of others with respect to any Intellectual Property, except for
notices the content of which if accurate could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(m) no labor disputes exist with employees of the Company or of
its Material Subsidiaries that could, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(n) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act;
(o) the Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended;
(p) the Company and each of its Material Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders of
and from all governmental and regulatory officials and bodies that are
necessary to own or lease and operate their properties and conduct
their businesses as described in the Prospectus and that are material
in relation to the business of the Company and its subsidiaries taken
as a whole;
(q) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida); and
(r) immediately after any sale of Securities by the Company
hereunder or under any applicable Terms Agreement, the aggregate
amount of Securities which shall have been issued and sold by the
Company hereunder or under any Terms Agreement and of any debt
securities of the Company (other than the Securities) that shall have
been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement.
2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of the
Company, to use its reasonable best efforts, consistent with industry
standards, to solicit offers to purchase the Securities from the Company
upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in
effect with respect to any Agent, the Company shall not, without the
consent of such Agent, solicit or accept offers to purchase, or sell,
Securities or any other debt securities with a maturity at the time of
original issuance of 9 months to 30 years except pursuant to this Agreement
and any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Securities Act or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term
debt securities. However, the Company reserves the right (i) to sell
Securities directly to investors (other than broker-dealers) in those
10
jurisdictions in which the Company is so permitted and (ii) to accept (but
not solicit) offers to purchase Securities from time to time through one or
more additional agents or dealers, acting as either principal or agent, on
substantially the same terms as those applicable to sales of Securities to
or through the Agents pursuant to this Agreement; provided that the Company
shall provide the Agents with written notice of each such acceptance within
two business days thereof. In connection with the Company's reservation
pursuant to clause (ii) above, it is understood that the Company may
respond to inquiries and requests for information from any such agents or
dealers. No commission will be paid on Securities sold directly by the
Company pursuant to clause (i) above.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Securities. Upon
receipt of at least one business day's prior notice from the Company, each
Agent will suspend solicitation of offers to purchase Securities from the
Company until such time as the Company has advised such Agent or Agents
that such solicitation may be resumed. During the period of time that such
solicitation is suspended, the Company shall not be required to deliver any
opinions, letters or certificates in accordance with Sections 4(i), 4(j)
and 4(k); provided that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered
for the Securities or for a change that the Agents deem to be immaterial),
no Agent shall be required to resume soliciting offers to purchase
Securities until the Company has delivered such opinions, letters and
certificates as such Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the
sale of each Security resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Security in an amount equal to the
following applicable percentage of the principal amount of such Security
sold:
Commission
(percentage of aggregate
Range of Maturities Sold principal amount of Securities sold)
From 9 months to less than 1 year.......... .125%
From 1 year to less than 18 months......... .150%
From 18 months to less than 2 years........ .200%
From 2 years to less than 3 years.......... .250%
From 3 years to less than 4 years.......... .350%
From 4 years to less than 5 years.......... .450%
From 5 years to less than 6 years.......... .500%
From 6 years to less than 7 years.......... .550%
From 7 years to less than 10 years......... .600%
From 10 years to less than 15 years........ .625%
From 15 years to less than 20 years........ .700%
From 20 years to and including 30 years.... .750%
The Agents are authorized to solicit offers to purchase
Securities only in the principal amount of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000. Each Agent shall
11
communicate to the Company, orally or in writing, each offer to purchase
Securities received by such Agent as agent that in its judgment should be
considered by the Company. The Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer in whole or
in part. Each Agent shall have the right, in its sole discretion, to
reject any offer to purchase Securities, as a whole or in part, that it
reasonably considers to be unacceptable and any such rejection shall not be
deemed a breach of its agreements herein contained. The procedural details
relating to the issue and delivery of Securities sold by an Agent as agent
and the payment therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to any Agent
as principal shall be made in accordance with the terms of this Agreement
and (unless such Agent shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the purchase thereof by,
such Agent. A Terms Agreement will be substantially in the form of Exhibit
A hereto but may take the form of an exchange of any standard form of
written telecommunication between an Agent and the Company and may also
specify certain provisions relating to the reoffering of such Securities by
such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be
deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein and in the applicable Terms Agreement set forth. Each
agreement by an Agent to purchase Securities as principal (pursuant to a
Terms Agreement or otherwise) shall specify the principal amount of
Securities to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Securities, the maturity date of such
Securities, the interest rate or interest rate basis, if any, applicable to
such Securities, any other terms of such Securities, the time and date and
place of delivery of and payment for such Securities (the time and date of
any and each such delivery and payment, the "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters acting
together with such Agent in the reoffering of Securities, and shall also
specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Unless otherwise
specified in a Terms Agreement, the procedural details relating to the
issue and delivery of Securities purchased by an Agent as principal and the
payment therefore shall be as set forth in the Administrative Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as
to the manner in which it solicits purchasers for the Securities and as to
the identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may
be amended from time to time. The Administrative Procedures may be amended
only by written agreement of the Company and the Agents.
(e) Other Securities. The Company agrees to notify each Agent of
sales by the Company of Other Securities.
12
(f) NatWest Capital Markets Limited hereby represents and agrees
that:
(i) it has not offered or sold and will not offer or
sell prior to the date six months after their date of issue any
Securities, having an original maturity of one year or greater,
to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(ii) it has complied with and will comply with all
applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who
is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or
is a person to whom such document may otherwise lawfully be
issued or passed on.
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below)
shall be delivered to the Agents at the offices of Davis Polk & Wardwell,
450 Lexington Avenue, New York, New York, at 11:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery
may be postponed by agreement between the Agents and the Company but in no
event shall be later than the day prior to the date on which solicitation
of offers to purchase Securities is commenced or the first date on which
the Company accepts an offer by any Agent to purchase Securities as
principal (such time and date being referred to herein as the "Commencement
Date").
4. Covenants of the Company. The Company covenants and agrees
with each Agent:
(a)(i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering
of the Securities pursuant to this Agreement or any Terms Agreement
which shall be disapproved by any Agent after reasonable opportunity
to comment thereon, provided, however, that the foregoing shall not
apply to any of the Company's periodic filings with the Commission
described in subsection (iii) below, copies of which filings the
Company will cause to be delivered to the Agents promptly after their
transmission to the Commission for filing; (ii), subject to the
foregoing clause (i), promptly to cause each Prospectus Supplement to
be filed with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act and to prepare,
with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file
13
such Pricing Supplement in accordance with Rule 424(b) under the
Securities Act; and (iii) promptly to file all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Securities.
The Company will promptly advise each Agent (i) of the filing of any
amendment or supplement to the Basic Prospectus or any amendment to
the Registration Statement and of the effectiveness of any such
amendment to the Registration Statement, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use
of any prospectus relating to the Securities or the initiation or
threatening of any proceeding for that purpose, or of any request by
the Commission for any amendment or supplement of the Registration
Statement or Prospectus or for additional information; and (iii) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose. The Company agrees to use its best
efforts to prevent the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or of
any notification suspending any such qualification and, if issued, to
use promptly its best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or supplemented as a
result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Securities so long as it is
not reasonably satisfied with such document.
(b) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to continue such qualification in
effect so long as reasonably required in connection with the
distribution of the Securities and to pay all fees and expenses
(including fees and disbursements of counsel to the Agents) reasonably
incurred in connection with such qualification and in connection with
the determination of the eligibility of the Securities for investment
under the laws of such jurisdictions as such Agent may designate;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified.
(c) To furnish each Agent and counsel to the Agents, at the
expense of the Company, a signed copy of the Registration Statement
(as originally filed) and each amendment thereto, in each case
including exhibits and documents incorporated by reference therein
and, during the period mentioned in paragraph (d) below, to furnish
each Agent as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference
therein as such Agent may reasonably request.
(d) If at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event shall
occur as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
14
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or, if in the
opinion of the Agents or the Company, it is necessary at any time to
amend or supplement the Prospectus to comply with law, to immediately
notify the Agents by telephone (with confirmation in writing) and
request each Agent (i) in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Securities from the Company
(and, if so notified, such Agent shall immediately cease such
solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later); and (ii) to
cease sales of any Securities such Agent may then own as principal.
If the Company shall decide to amend or supplement the Registration
Statement or the Prospectus, as then amended or supplemented, it shall
so advise each Agent promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus, as then amended or
supplemented, that will correct such statement or omission or effect
such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably
request. If any such amendment or supplement and any documents,
opinions, letters and certificates furnished to the Agents pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all
respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of
an amendment to the Registration Statement, the Agents will resume the
solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), until the
distribution of any Securities any Agent may own as principal has been
completed or in the event such Agent, in the opinion of its counsel,
is otherwise required to deliver a prospectus in respect of a
transaction in the Securities, if any event described in this Section
4(d) occurs the Company will, at its own expense, promptly prepare and
file with the Commission an amendment or supplement, satisfactory in
all respects to such Agent, that will correct such statement or
omission or effect such compliance, will supply such amended or
supplemented Prospectus to such Agent in such quantities as such Agent
may reasonably request and shall furnish to such Agent pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) such documents, certificates,
opinions and letters as it may request in connection with the
preparation and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement
such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Securities, this Agreement,
the Administrative Procedures, any applicable Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder
as the Agents may from time to time reasonably request and shall
notify the Agents promptly in writing of any downgrading, or on its
receipt of any notice of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement in the rating accorded any of securities of, or guaranteed
15
by, the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(f) To make generally available to its security holders and to
such Agent as soon as practicable earnings statements which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder covering periods of at
least twelve months beginning in each case with the first fiscal
quarter of the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement with respect to
each sale of Securities.
(g) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to holders of Securities and copies of any reports
and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of
the Company is listed.
(h) That, from the date of any applicable Terms Agreement with
such Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the business day following
the related Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Securities, without the
prior written consent of such Agent.
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on
the Securities or for a change the Agents deem to be immaterial) and
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement or other agreement and such Terms
Agreement or other agreement specified the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent the written
opinion of R. Read Hudson, Corporate Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, dated the date of
such amendment or supplement, or the related Time of Delivery relating
to such sale, as the case may be, in form satisfactory to such Agent,
of the same tenor as each of the opinions referred to in Sections 6(b)
and (c) hereof but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of such
opinion, provided that if so requested by any Agent acting as
principal the Company shall also furnish or cause to be furnished to
such Agent the written opinion of Rose Law Firm, special counsel to
the Company, dated and modified as indicated above, of the same tenor
as the opinion referred to in Section 6(b) hereof (in which case the
opinion of Corporate Counsel to the Company referred to above need not
address the matters addressed in Section 6(b) hereof); or, in lieu of
such opinion, counsel last furnishing such an opinion, may furnish to
the Agents a letter to the effect that such Agent may rely on the
opinion of such counsel which was last furnished to such Agent to the
same extent as though it were dated the date of such letter (except
16
that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or
supplemented to date of delivery of such letter).
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies
the delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement or other
agreement, the Company shall cause the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment or supplement or the related Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred
to in Section 6(e) hereof but modified to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date of
such letter with such changes as may be necessary to reflect such
amended or supplemented financial information included or incorporated
by reference in the Registration Statement or the Prospectus as
amended or supplemented, provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as
true and correct at such date, as though made at and as of such date,
rather than repeat, statements with respect to such
financialinformation or other matter made in the letter referred to in
Section 6(e) hereof which was last furnished to such Agent.
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on
the Securities or for a change the Agents deem to be immaterial), and
each time the Company sells Securities to such Agent as principal and
the applicable Terms Agreement or other agreement specifies the
delivery of a certificate under this Section 4(k) as a condition to
the purchase of Securities pursuant to such Terms Agreement or other
agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate signed by an executive officer
of the Company, dated the date of such amendment or supplement or the
related Time of Delivery relating to such sale, as the case may be, in
form satisfactory to such Agent, of the same tenor as the certificates
referred to in Section 6(f) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date
of delivery of such certificate or to the effect that the statements
contained in the certificate referred to in Section 6(f) hereof which
was last furnished to such Agent are true and correct at such date as
though made at and as of such date (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with
each Agent that the Company will, whether or not any sale of Securities is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
17
without limiting the generality of the foregoing, all costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Agents (or in
connection with any Terms Agreement, the applicable Agent) may designate
(including fees of counsel for the Agents (or such Agent) and their
disbursements), (iv) in connection with the listing of the Securities on
any stock exchange, (v) related to any filing with National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including
word processing and duplication costs) and delivery of this Agreement, the
Indenture, any Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to the Agents and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) payable to rating agencies in connection with the rating of
the Securities, (viii) the fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Securities,
including any opinions to be rendered by such counsel hereunder and (ix)
any advertising and out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to purchase
the Securities, the obligation of any Agent to purchase Securities as
principal pursuant to any Terms Agreement or otherwise, and the obligation
of any other purchaser to purchase Securities shall in each case be subject
(1) to the condition that all representations and warranties of the Company
herein and all statements of officer's of the Company made in any
certificate furnished pursuant to the provisions hereof are true and
correct (i) in the case of an Agent's obligation to solicit offers to
purchase Securities, at and as of such Solicitation Time and (ii) in the
case of any Agent's or any other purchaser's obligation to purchase
Securities, at and as of the time the Company accepts the offer to purchase
such Securities and, as the case may be, at and as of the related Time of
Delivery or time of purchase; (2) to the condition that at or prior to such
Solicitation Time, time of acceptance, Time of Delivery or time of
purchase, as the case may be, the Company shall have complied with all its
agreements and all conditions on its part to be performed or satisfied
hereunder; and (3) to the following additional conditions when and as
specified (it being understood that under no circumstance shall any Agent
have any duty or obligation to excercise discretionary judgment on behalf
of the Company or any purchaser in respect of the fulfillment of any such
condition):
(a) Prior to such Solicitation Time or corresponding Time of
Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with
respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing
by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration
18
Statement shall be in effect and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on
the part of the Commission shall have been complied with to
the reasonable satisfaction of such Agent;
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(iii) there shall not have been any material
adverse change or any development involving a prospective
material adverse change, in or affecting the business,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth, incorporated by
reference or contemplated in the Prospectus, as amended or
supplemented to such Solicitation Time or at the time such
offer to purchase was made, the effect of which in the
judgment of the applicable Agent makes it impracticable or
inadvisable to market the Securities on the terms and in the
manner contemplated in the Prospectus, as so amended or
supplemented; and
(iv)(A) trading generally shall not 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 National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B)
trading of any securities of or guaranteed by the Company
shall not have been suspended on any exchange or in any
over-the-counter market, (C) a general moratorium on
commercial banking activities in New York shall not have
been declared by either Federal or New York State
authorities, or (D) there shall not have occurred any
outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the
judgment of such Agent or Agents or of such other purchaser,
is material and adverse and which in the judgment of such
Agent or Agents or of other purchaser makes it impracticable
to market the Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at
the Solicitation Time or at the time such offer to purchase
was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Rose Law Firm,
special counsel for the Company, shall have furnished to the relevant
Agent or Agents their written opinion, dated the Commencement Date or
19
Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iii) this Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company;
(iv) the Securities have been duly authorized by the
Company and, when the terms of any particular Securities are
established and such Securities are duly executed, authenticated
and issued in accordance with the terms of the Indenture and
delivered to and paid for by any purchaser of Securities sold
through an Agent as agent or any Agent as principal pursuant to
any Terms Agreement or other agreement, will constitute valid and
binding obligations of the Company entitled to the benefits
provided by the Indenture;
(v) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
instrument of the Company; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by this Agreement, any applicable Terms Agreement or
other agreement pursuant to which an Agent purchases Securities
as principal or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities
by the Underwriter;
(vii) the statements in the Prospectus under
"Description of Notes", "Description of Debt Securities", "Plan
of Distribution", "Underwriting" and "United States Tax
Considerations", in the Prospectus incorporated by reference from
Item 3 of Part I of the Company's Annual Report on Form 10-K for
the fiscal year ended October 1, 1994, in the Prospectus
incorporated by reference from Item 1 of Part II of the Company's
Quarterly Reports on Form 10-Q, if any, filed since such Annual
Report, in the Prospectus incorporated by reference from Item 5
20
of the Company's Current Reports on Form 8-K, if any, filed since
such Annual Report, and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings; and
(viii) such counsel (A) is of the opinion that each
document incorporated by reference in the Registration Statement
and the Prospectus (except for the financial statements included
therein as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all
material respects with the Exchange Act, (B) believes that
(except for the financial statements included therein as to which
such counsel need express no belief and except for that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee and
except with respect to information contained in the Registration
Statement or the Prospectus relating to any Agent furnished to
the Company in writing by such Agent expressly for use therein)
each part of the registration statement filed with the Commission
pursuant to the Securities Act relating to the Securities, when
such part became effective, did not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (C) is of the opinion that the Registration Statement
and the Prospectus and any amendments and supplements thereto
(except for the financial statements included therein as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and
(D) believes that (except for the financial statements included
therein as to which such counsel need express no belief and
except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee and except with respect to information
contained in the Registration Statement or the Prospectus
relating to any Agent furnished to the Company in writing by such
Agent expressly for use therein) the Registration Statement, as
amended on the date of this Agreement, did 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, and that the Prospectus as amended or
supplemented, if applicable, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Delaware and Arkansas, to the extent
such counsel deems proper and to the extent specified in such opinion,
if at all, upon an opinion or opinions (reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as
to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having
21
custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect
to the matters to be covered in subparagraph (xi) above, counsel may
state their opinion and belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and
any amendment or supplement thereto but is without independent check
or verification except as specified.
(c) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, R. Read Hudson,
Corporate Counsel of the Company, shall have furnished to the relevant
Agent or Agents their written opinion, dated the Commencement Date or
Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) each of the Company's Material Subsidiaries has
been duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with power
and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all of the outstanding shares
of capital stock of each Material Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable,
and (except in the case of foreign subsidiaries, for directors'
qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(ii) to the best of such counsel's knowledge after
diligent inquiry, other than as set forth, incorporated by
reference or contemplated in the Prospectus, there are no legal
or governmental proceedings pending or threatened to which the
Company or any of its Material Subsidiaries is or may be a party
or to which any property of the Company or its Material
Subsidiaries is or may be the subject which, if determined
adversely to the Company or such Material Subsidiaries, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required;
22
(iii) neither the Company nor any of its Material
Subsidiaries is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its Material Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the issue and sale of
the Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this
Agreement and any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Securities as principal and
the consummation of the transactions herein and therein contem
plated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which
the Company or any of its Material Subsidiaries is a party or by
which the Company or any of its Material Subsidiaries is bound or
to which any of the property or assets of the Company or any of
its Material Subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Company or any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
its Material Subsidiaries or any of their respective properties;
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Delaware and Arkansas, to the extent
such counsel deems proper and to the extent specified in such opinion,
if at all, upon an opinion or opinions (reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as
to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon.
(d) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Davis Polk &
Wardwell, counsel to the Agents, shall have furnished to the relevant
Agent or Agents such opinion or opinions, dated the Commencement Date
or Time of Delivery, as the case may be, with respect to the validity
of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as
such Agent or Agents may reasonably request, and in each case such
counsel shall have received such papers and information as they may
23
reasonably request to enable them to pass upon such matters.
(e) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the Company's
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus, as then amended or supplemented, shall have furnished to
the relevant Agent or Agents a letter, dated the Commencement Date or
Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, 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 relating to the Company contained in or
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented.
(f) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent
or Agents shall have received a certificate or certificates signed by
an executive officer of the Company, dated the Commencement Date or
Time of Delivery, as the case may be, to the effect set forth in
Section 6(a)(i) and (ii) above and to the further effect that (1) the
representations and warranties of the Company contained herein are
true and correct on and as of the Commencement Date or Time of
Delivery, as the case may be, as if made on and as of such date, (2)
the Company has complied with all agreements and all conditions on its
part to be performed or satisfied hereunder or under the applicable
Terms Agreement or other agreement at or prior to the Commencement
Date or Time of Delivery, as the case may be, and (3) there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth in or contemplated
by the Registration Statement or the Prospectus.
(g) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such
further certificates, information and documents as such Agent or
Agents may reasonably request.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who
controls such Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including without limitation
the legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus or caused by any
24
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing by such Agent
expressly for use therein; provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Agent (or to the benefit of any person controlling such Agent) from whom
the person asserting any such losses, claims, damages or liabilities
purchased Securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) and, if required by
law, a copy of the Prospectus (as so amended or supplemented) shall not
have been furnished to such person at or prior to the written confirmation
of the sale of such Securities to such person.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, it directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Agents and such control
persons of the Agents shall be designated in writing by J.P. Morgan
Securities Inc. or, if J.P. Morgan Securities Inc. is not an Indemnified
Party by the Agents that are Indemnified Parties and any such separate firm
25
for the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person agrees that
it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 day
after receipt by such Indemnifying Person of the aforesaid request and
(ii)such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or (b)
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein in
connection with any offering of Securities, then each Indemnifying Person
under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent on
the other in connection with the offering of such Securities shall be
deemed to be in the same respective proportion as the net proceeds from the
offering of such Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by each Agent in
respect thereof bear to the aggregate offering price of such Securities.
The relative fault of the Company on the one hand and of each Agent on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or by such Agent on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and each Agent agrees that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if all Agents were treated as one entity for
26
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to above in
this Section 7 shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no event shall
an Agent be required to contribute any amount in excess of the amount by
which the total price at which the Securities referred to in Section 7(d)
that were sold by or through such Agent exceeds the amount of any damages
that such Agent 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 obligation of
each Agent to contribute pursuant to this subsection (d) is several (in the
proportion that the principal amount of the Securities the sale of which by
or through such Agent gave rise to such losses, claims, damages or
liabilities bears to the aggregate principal amount of the Securities the
sale of which by or through any Agent gave rise to such losses, claims,
damages or liabilities) and is not joint.
(e) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Termination. (a) This Agreement may be terminated at any
time (i) by the Company with respect to any or all of the Agents or (ii) by
any Agent with respect to itself only, in each case upon the giving of
written notice of such termination to each other party hereto. Any Terms
Agreement shall be subject to termination in the absolute discretion of the
Agent or Agents that are parties thereto on the terms set forth or
incorporated by reference therein. The termination of this Agreement shall
not require termination of any agreement by an Agent to purchase Securities
as principal (whether pursuant to a Terms Agreement or otherwise) and the
termination of such an agreement shall not require termination of this
Agreement. In the event this Agreement is terminated with respect to any
Agent, (x) this Agreement shall remain in full force and effect with
respect to any Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the
rights and obligations of any party which have previously accrued or which
relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and (z) in any
event, the provisions of the fourth paragraph of Section 2(a), Section
2(c), the last sentence of Section 4(d) and Sections 4(f), 4(g), 5, 7, 9,
10, 12 and 15 shall survive; provided that if at the time of termination an
offer to purchase Securities has been accepted by the Company but the time
of delivery to the purchaser or its agent of such Securities has not yet
occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is
terminated, the provisions of the last sentence of Section 4(d) and
Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7, 9, 10,
12 and 15 (which shall have been incorporated by reference in such Terms
Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated
27
by an Agent or Agents 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 any Terms Agreement or if for any reason the Company
shall be unable to perform its obligations under this Agreement or any
Terms Agreement or any condition of any Agent's obligations cannot be
fulfilled, the Company agrees to reimburse each Agent or such Agents as
have so terminated this Agreement with respect to themselves, severally,
for all out-of-pocket expenses (including the fees and expenses of their
counsel) reasonably incurred by such Agent or Agents in connection with
this Agreement or the offering of Securities.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing the other
obligations of such Agent hereunder (other than in respect of any purchase
by an Agent as principal, pursuant to a Terms Agreement or otherwise), is
acting solely as agent for the Company and not as principal and does not
assume any obligation towards or relationship of agency or trust with any
purchaser of Securities. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Company was solicited by such Agent and has
been accepted by the Company, but such Agent shall not have any liability
to the Company in the event such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall
(i) hold the relevant Agent harmless against any loss, claim, damage or
liability arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and
other statements of the Company, its officers and the Agents set forth in
or made pursuant to this Agreement or any agreement by an Agent to purchase
Securities as principal shall remain in full force and effect regardless of
any termination of this Agreement or any such agreement, any investigation
made by or on behalf of any Agent or any controlling person of any Agent,
or the Company, or any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
11. Notices. Except as otherwise specifically provided herein
or in the Administrative Procedures, all statements, requests, notices and
advices hereunder shall be in writing, and effective only on receipt, and
will be delivered by hand, by mail (postage prepaid), by telegram (charges
prepaid), telex or telecopier. Communications to the Agents will be sent,
in the case of J.P. Morgan Securities Inc., to 60 Wall Street, New York,
New York 10260 (Telex: RCA 232194; Telecopier: (212) 648-5907) Attention:
Medium-Term Note Trading Desk; in the case of CS First Boston Corporation,
to Park Avenue Plaza, 55 E. 52nd Street, New York, New York 10055
(Telecopier: (212) 318-1498) Attention: Short and Medium Term Finance; in
the case of Merrill Lynch, Pierce, Fenner & Smith Incorporated, to World
Financial Center, North Tower, 10th Floor, New York, New York 10281-1310
(Telecopier: (212) 449-2234) Attention: MTN Product Management; in the case
of BA Securities, Inc., to 231 S. LaSalle, 17th Floor, Chicago, Illinois
60697 (Telecopier: (312) 987-7293) Attention: Syndicate; in the case of
A.G. Edwards & Sons, Inc., to One North Jefferson, St. Louis, Missouri
28
63103 (Telecopier: (314) 289-7387) Attention: Syndicate; in the case of
NatWest Capital Markets Limited, to 175 Water Street, New York, New York
10038 (Telecopier: (212) 602-4939) Attention: Medium-Term Note Department;
and in the case of Stephens Inc., to 111 Center Street, Little Rock,
Arkansas 72201 Attention: Mike Smith, Syndicate Department; and, if sent to
the Company, to it at 2210 West Oaklawn Drive, Springdale, Arkansas 72762-
6999 (Telecopier: (501) 290-4061) Attention: Executive Vice President -
Finance.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the
Company, and their respective successors and the officers, directors and
controlling persons referred to in Section 7 and (to the extent expressly
provided in Section 6) the purchasers of Securities, and no other person
shall acquire or have any right or obligation under or by virtue of this
Agreement or any Terms Agreement.
13. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed
by the Company and each Agent; provided that the Company may from time to
time, on 7 days prior written notice to the Agents but without the consent
of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as
the other Agents that are parties hereto. The Agents shall sign any
amendment or supplement giving effect to the addition of any such firm as
an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day"
shall mean any day which is not a Saturday or Sunday or legal holiday or a
day on which banks in New York City are required or authorized by law,
regulation or executive order to close.
15. Applicable Law. This Agreement and any Terms Agreement
shall be governed by, and construed in accordance with, the laws of the
State of New York, without giving effect to the conflict of laws provisions
thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of
which together shall constitute one and the same instrument.
17. 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.
If the foregoing is in accordance with your understanding, please
sign and return to us 10 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
TYSON FOODS, INC.
By: ____________________
29
Accepted in New York, New York,
as of the date first above written:
J.P. MORGAN SECURITIES INC.
By:________________________
Name:
Title:
CS FIRST BOSTON CORPORATION
By: ___________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: ___________________________
Name:
Title:
BA SECURITIES, INC.
By: ___________________________
Name:
Title:
A.G. EDWARDS & SONS, INC.
By: ___________________________
Name:
Title:
NATWEST CAPITAL MARKETS LIMITED
By: ___________________________
Name:
Title:
STEPHENS INC.
By: ___________________________
Name:
Title:
30