Exhibit 1.1
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
Dear Sirs:
ANHEUSER-BUSCH COMPANIES, INC. (the "Company") proposes to issue and sell
from time to time certain of its debt securities referred to below (the
"Securities") registered under the registration statement referred to below.
The Securities will be issued under an Indenture (the "Indenture"), dated as of
________________, between the Company and _________________________, as
Trustee, and will have varying designations, interest rates and times of
payment of any interest, maturities, redemption provisions and other terms,
with all such terms for any particular series of the Securities being
determined at the time of the sale. Particular series of the Securities may be
sold to you, and to other firms on whose behalf you may act, for resale in
accordance with the terms of offering determined at the time of sale. The
Securities involved in any such offering are hereinafter referred to as the
"Purchased Securities", and the firms which agree to purchase the same are
hereinafter referred to as the "Underwriters" of such Purchased Securities.
The terms and conditions herein shall constitute a separate agreement between
the Company and the respective Underwriters in regard to each offering of
Purchased Securities.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (herein
referred to collectively as the "Act"), a registration statement on Form S-3
(No. 33-________) relating to the Securities which became effective on
______________, 1995, which includes a prospectus in respect of such
registration statement. Such registration statement, as amended or
supplemented by a Prospectus Supplement with respect to an offering of
Purchased Securities as referred to in Section 1 below and all prior amendments
and supplements thereto (other than supplements relating to Securities that are
not Purchased Securities) including the Prospectus dated _______________, 1995,
and including all documents filed as a part thereof or incorporated therein,
are hereinafter together referred to as the "Registration Statement," and such
prospectus, as so amended or supplemented, including all documents incorporated
by reference therein, as the "Prospectus."
This Agreement shall not limit or affect the right of the Company to offer
or sell any of the Securities through any other underwriters or agents or
through any other arrangements specified by the Company from time to time, and
this Agreement shall apply only to Securities in respect of which a Terms
Agreement shall have been executed as referred to herein.
The Company and the Underwriters agree as follows:
1. Purchase and Offering.
(a) The obligations of the Underwriters to purchase the Purchased
Securities will be evidenced by an exchange of telegraphic or other written
communications (a "Terms Agreement") at each time the Company determines to
sell Purchased Securities. Each Terms Agreement shall specify the firms which
will be Underwriters (who shall become bound by the terms hereof when the Terms
Agreement has been entered into), the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Purchased Securities not already specified in the Indenture, including, but
not limited to, interest rates, maturities, redemption provisions and sinking
fund requirements. Each Terms Agreement shall also specify the date of
delivery and payment for the Purchased Securities other than any Contract
Securities (as defined below) and any details of the terms of offering which
should be reflected in the Prospectus Supplement relating to the offering of
the Purchased Securities. Such Prospectus Supplement shall set forth the terms
contained in the Terms Agreement and such other information that you and the
Company agree at the time the Terms Agreement is entered into should be
included in the Prospectus Supplement. Insofar as any provision of this
Agreement is inconsistent with any Terms Agreement, the Terms Agreement shall
be deemed to control. Purchased Securities to be purchased by Underwriters are
herein referred to as "Underwriters' Securities," and any Purchased Securities
to be purchased pursuant to Delayed Delivery Contracts (as defined below) as
hereinafter provided are herein referred to as "Contract Securities." The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be several and not joint. It is understood that the Underwriters propose to
offer the Purchased Securities for sale as set forth in such Prospectus
Supplement.
(b) Payment of the purchase price for the Underwriters' Securities shall
be made to the Company or its order by wire transfer of immediately available
funds or in other manner satisfactory to the Company against delivery of the
Underwriters' Securities to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M. (1) on the
date of delivery specified in the Terms Agreement (unless another time not
later than 10:00 A.M. on the third business day (2) thereafter shall be agreed
to by you and the Company or unless postponed in accordance with the provisions
of Section 6 hereof). The time and date that such payment and delivery are
actually made is herein sometimes referred to as the "time of purchase." The
Underwriters' Securities shall be delivered to you in definitive form, in
temporary or final form, and in such names and such principal amounts as, not
later than 10:00 A.M. on the business day immediately preceding the time of
purchase, you shall specify. For the purpose of expediting the checking and
packaging of the Underwriters' Securities by you, the Company agrees to make
them available to you for such purpose prior to the close of business on the
business day preceding the time of purchase.
(c) If any Terms Agreement provides for sales of Purchased Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Contract Securities pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto (the "Delayed
Delivery Contracts") with such changes therein as the Company may approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. At the time of purchase
the Company will pay you as compensation, for the accounts of the Underwriters,
the compensation set forth in such Terms Agreement in respect of the principal
amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities shall be deducted from the Purchased
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Purchased Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Purchased
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that you determine that such reduction shall be otherwise
allocated and so advise the Company.
2. Certain Covenants of the Company: The Company agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Purchased Securities for offering and sale and in
determining their eligibility for investment under the laws of such states as
you may designate; provided that the Company shall not be required to qualify
as a foreign corporation or to consent to the service of process in any state
(except with respect to the offering and sale of the Purchased Securities);
(b) to make available to you and the Underwriters, as soon as available,
as many copies of the Registration Statement, each related preliminary
prospectus, the Prospectus, any documents incorporated by reference therein at
or after the date thereof, and any amendments or supplements thereto (except
that supplements relating to Securities that are not Purchased Securities will
be furnished only to you), as you may reasonably request for the purposes
contemplated by the Act;
(c) to advise you promptly (confirming such advice in writing) of any
request by the Securities and Exchange Commission (the "Commission") for
amendments to the Registration Statement or Prospectus (including documents
deemed to be incorporated by reference into the Prospectus) or for additional
information with respect thereto and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon as
possible;
(d) so long as any of the Purchased Securities shall remain outstanding,
to furnish to you and, upon request, to each of the other Underwriters such
consolidated statements of income, retained earnings and changes in financial
(1) Times mentioned herein are New York City Times.
(2) As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
Exhibit 1.1 - Page 2
position and balance sheets of the Company as it shall furnish to holders of
the Purchased Securities and as it shall file with the Commission;
(e) to advise you promptly of the happening of any event known to the
Company within the time during which a prospectus relating to the Purchased
Securities is required to be delivered under the Act which, in the judgment of
the Company, would require the making of any change in the Prospectus then
being used or in the information incorporated by reference therein so that the
statements therein would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, and to
prepare and furnish to the Underwriters promptly such amendments or supplements
to such prospectus as may be necessary to reflect any such change;
(f) to make generally available to its security holders an earnings
statement of the Company (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Act not later than 45 days after the end of
the 12-month period beginning at the end of any fiscal quarter of the Company
during which a Terms Agreement is entered into;
(g) to pay all expenses, fees and excise taxes (other than transfer taxes
and fees and disbursements of counsel for the Underwriters except as set forth
under Section 3 hereof or (iv) below) in connection with (i) the preparation
and filing of the Registration Statement, each related preliminary prospectus,
the Prospectus and any documents incorporated by reference therein at or after
the date thereof and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to dealers as
required by applicable law, (ii) the issue, sale, and delivery of the Purchased
Securities, (iii) the printing of this Agreement, any agreement among
underwriters, any statements of information, the opinions and letters referred
to in subsections (a) and (b) of Section 4 hereof and the Indenture and the
furnishing of copies thereof to the Underwriters, (iv) the qualification of the
Purchased Securities for offering and sale and determination of their
eligibility for investment under state laws as aforesaid (including the legal
fees and disbursements of counsel for the Underwriters and all filing fees) and
the printing and furnishing of copies of the "Blue Sky Survey" to the
Underwriters and to dealers, (v) the rating of the Purchased Securities by
investment rating agencies and (vi) the performance of the Company's other
obligations hereunder;
(h) to furnish to you as early as practicable a copy of the latest
available unaudited interim consolidated financial statements, if any, which
have been read by the independent public accountants referred to in Section
4(c) hereof as stated in their letter to be furnished pursuant to such Section,
any such financial statements to be so furnished no later than two full
business days prior to the date of such letter;
(i) to furnish to you two signed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto and documents incorporated therein) and sufficient
unsigned copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters; and
(j) before amending or supplementing the Registration Statement or the
Prospectus, or filing with the Commission during the period referred to in
subsection (e) of this Section 2 any document pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended (herein, together with
the rules and regulations of the Commission thereunder, collectively referred
to as the "Exchange Act"), to furnish to you a copy of each such proposed
amendment, supplement or document.
3. Reimbursement of Underwriters' Expenses: If the Underwriters'
Securities are not delivered for any reason other than the termination of this
agreement pursuant to Section 5 hereof or the default by one or more of the
Underwriters in its or their obligations to purchase Underwriters' Securities
pursuant to any Terms Agreement, the Company shall reimburse the Underwriters
for all of their reasonable out-of-pocket expenses, including the fees and
expenses of their counsel.
4. Conditions of Underwriters' Obligations: The several obligations of
the Underwriters to purchase and pay for any issue of Underwriters' Securities
under any Terms Agreement are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed opinions
of Armstrong, Teasdale, Schlafly & Davis, counsel for the Company, and of the
General Counsel of the Company, or of an Associate General Counsel, in form
satisfactory to your counsel, addressed to the Underwriters and dated the time
of purchase (with conformed or reproduced copies thereof for each of the other
Underwriters), as indicated below.
(i) The opinion of Armstrong, Teasdale, Schlafly & Davis is to state
in substance that:
Exhibit 1.1 - Page 3
(A) the Company and its wholly-owned subsidiary,
Anheuser-Busch, Incorporated, a Missouri corporation ("ABI"), have
been duly incorporated and are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation,
and have all power and authority necessary to own their properties
and conduct the businesses in which they are engaged;
(B) this Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, except as rights to
indemnification provided herein may be unenforceable under applicable
laws;
(C) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the
Company;
(D) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument legally binding
upon the Company in accordance with its terms; the Purchased
Securities have been duly authorized; the Underwriters' Securities
(assuming they have been signed by the appropriate officers of the
Company, the facsimile seal of the Company has been affixed thereto
or imprinted thereon and they have been duly authenticated by the
Trustee, in accordance with the Indenture, which assumptions such
counsel need not verify by an inspection of the Underwriters'
Securities) have been duly issued and constitute legal, valid and
binding obligations of the Company; the Contract Securities (assuming
that they will have been similarly signed, that the facsimile seal of
the Company will have been affixed thereto or imprinted thereon and
that they will have been duly authenticated by the Trustee, as
aforesaid), when issued and delivered against payment as provided in
the Delayed Delivery Contracts, will have been duly issued and will
constitute legal, valid and binding obligations of the Company; and
the Purchased Securities are, and the Contract Securities will be,
entitled to the benefits provided by the Indenture; provided,
however, that (a) the enforceability of the Indenture, the
Underwriters' Securities and the Contract Securities may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies thereunder may be limited by
equitable principles of general applicability;
(E) the Purchased Securities, the Delayed Delivery Contracts
and the Indenture conform in all material respects as to legal
matters with the statements concerning them in the Prospectus;
(F) the contracts or other documents incorporated by reference
in the Registration Statement (the "Incorporated Documents") (other
than the financial statements, related schedules and other financial
and statistical data included therein, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act;
(G) the Registration Statement and the Prospectus (other than
the financial statements, related schedules and other financial and
statistical data included therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Indenture complies in all material
respects with the Trust Indenture Act of 1939, as amended;
(H) no approval by any governmental or regulatory authority is
required in connection with the consummation of the transactions
contemplated by this Agreement other than registration of the
Purchased Securities under the Act and qualification of the Indenture
under the Trust Indenture Act of 1939, as amended, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Purchased Securities are being offered;
(I) the Registration Statement is effective under the Act, and
no proceedings for a stop order are pending or, to the best of such
counsel's knowledge, threatened under the Act; and
In addition, such counsel shall state that such counsel has participated
in the preparation of the Registration Statement and Prospectus and although
such counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to the matters referred to
under subheadings (E) and (G) of this subsection (a)), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel which lead it to believe that either the Registration
Exhibit 1.1 - Page 4
Statement or the Prospectus, each as of the date of the Terms Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements, related schedules and other financial
and statistical data included in the Registration Statement or Prospectus).
(ii) The opinion of the General Counsel of the Company, or of an
Associate General Counsel, is to state in substance that:
(A) there are no contracts or other documents required to be
included among the Incorporated Documents or filed as exhibits to the
Incorporated Documents or the Registration Statement other than those
incorporated by reference or filed as required;
(B) to the best of such counsel's knowledge, there is no
litigation or any governmental proceeding pending or threatened
against the Company or any of its subsidiaries which would affect the
transactions contemplated by this Agreement or is required to be
disclosed in the Registration Statement or Prospectus which is not
disclosed and correctly summarized therein; and
(C) neither the Registration Statement nor the Prospectus, each
as of the date of the Terms Agreement, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, related schedules
and other financial and statistical data included in the Registration
Statement or Prospectus).
(b) That, at the time of purchase, the Underwriters shall receive the
favorable opinion of its counsel, dated the time of purchase, as to the matters
referred to in subheadings (B), (C), (D), (E) and (G) of subsection (a)(i) of
this Section 4.
In addition, such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company, counsel
for the Company, representatives of the independent accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus (except as to matters
referred to under subheadings (E) and (G) of subsection (a)(i) of this Section
4), on the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement or the Prospectus, each as of
the date of the Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood
that such counsel need express no comment with respect to the financial
statements, related schedules and other financial and statistical data included
in the Registration Statement or Prospectus).
(c) That, at the time of purchase, you shall receive a signed letter from
Price Waterhouse, independent public accountants, dated the time of purchase,
substantially in the form heretofore furnished to you and in substance
satisfactory to you, addressed to the Underwriters (with conformed or
reproduced copies thereof for each of the other Underwriters) with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the Prospectus.
(d) That, prior to the time of purchase, (i) no stop order with respect
to the effectiveness of the Registration Statement shall have been issued under
the Act or proceedings therefor pending or threatened; (ii) the Registration
Statement shall 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; and (iii) the Prospectus shall 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, other than any statement contained in, or any matter omitted from,
the Registration Statement or the Prospectus in reliance upon, and in
conformity with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement or Prospectus.
(e) That, between the time of execution of the Terms Agreement and the
time of purchase, in your opinion no material adverse change or any development
involving a prospective material adverse change in the condition
Exhibit 1.1 - Page 5
of the Company and its subsidiaries, taken as a whole (financial or otherwise),
shall have taken place (other than as referred to in or contemplated by the
Registration Statement and Prospectus).
(f) That the Company shall perform such of its obligations under this
Agreement which are to be performed by the terms hereof at or before the time
of purchase.
(g) That the Company shall, at the time of purchase, deliver to you (with
reproduced or conformed copies thereof for each of the other Underwriters) a
signed certificate of two of its executive officers stating that, between the
time of execution of the Terms Agreement and the time of purchase, no material
adverse change or any development involving a prospective material adverse
change in the condition of the Company and its subsidiaries, taken as a whole
(financial or otherwise), shall have taken place (other than as referred to in
or contemplated by the Registration Statement and Prospectus) and also covering
the matters set forth in subsections (d) and (f) of this Section 4.
(h) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
5. Termination of Terms Agreement: Any Terms Agreement may be
terminated, prior to the related time of purchase, by you or by any group of
Underwriters which has agreed to purchase in the aggregate at least 50% of the
Underwriters' Securities contemplated in such Terms Agreement if, in your
judgment or in the judgment of any such group of Underwriters, there shall have
occurred any material outbreak or escalation of hostilities or other national
or international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as to make it impracticable to market
the Securities contemplated in such Terms Agreement.
The obligations of the several Underwriters under any Terms Agreement
shall also be subject to termination in your absolute discretion if, at any
time prior to the related time of purchase, trading in securities on the New
York Stock Exchange shall have been suspended or minimum prices shall have been
established on the New York Stock Exchange, or if a banking moratorium shall
have been declared either by the United States or New York State authorities,
or if the United States shall have declared war in accordance with its
constitutional processes.
If you or any group of Underwriters elects to terminate any Terms
Agreement as provided in this Section 5, the Company and each other Underwriter
shall be notified promptly by delivery, telex, telefax or other customary
manner of communication.
If the sale to the Underwriters of the Underwriters' Securities, as
contemplated in any Terms Agreement, is not carried out by the Underwriters for
any reason permitted hereunder or if such sale is not carried out because the
Company shall be unable to comply with any of the terms hereof, the Company
shall not be under any obligation or liability under this Agreement or such
Terms Agreement (except to the extent provided in Sections 2(g), 3 and 7(c)
hereof) and the Underwriters shall be under no obligation or liability to the
Company under this Agreement or such Terms Agreement (except to the extent
provided in Section 7(e) hereof) or to one another hereunder.
6. Increase in Underwriters' Commitments: If any Underwriter shall
default in its obligation to take up and pay for the Purchased Securities to be
purchased by it under any Terms Agreement and if the principal amount of
Purchased Securities which all Underwriters so defaulting shall have so failed
to take up and pay for does not exceed 10% of the total principal amount of
Purchased Securities agreed to be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Purchased Securities they are obligated to purchase
pursuant to such Terms Agreement) the principal amount of Purchased Securities
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Purchased Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event
no such designation is made, such Purchased Securities shall be taken up and
paid for by all non-defaulting Underwriters pro rata in proportion to the
principal amount of Purchased Securities they have agreed to purchase under
such Terms Agreement.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Purchased Securities under any Terms Agreement unless all of the
Underwriters' Securities under any such Terms Agreement are purchased by the
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you shall have the right
Exhibit 1.1 - Page 6
to postpone the time of purchase for a period not exceeding five full business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any underwriter substituted under this Section 6.
7. Warranties and Representations of and Indemnity by the Company and
the Underwriters:
(a) The Company warrants and represents in connection with each offering
of Purchased Securities that the Registration Statement has become effective,
that the Registration Statement and the Prospectus fully comply and as of the
date of the Terms Agreement in respect of such Purchased Securities will fully
comply with the provisions of the Act, and, in the case of the Incorporated
Documents, with the Exchange Act, and that neither contains or as of the date
of such Terms Agreement will contain any untrue statement of a material fact or
omits or as of the date of such Terms Agreement will omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter
omitted from, the Registration Statement or the Prospectus in reliance upon and
in conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement or Prospectus. The Company warrants
and represents that the Incorporated Documents, at the time they were filed
with the Commission, complied in all material respects with the requirements of
the Exchange Act, and any additional documents deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act will,
when they are filed with the Commission, comply in all material respects with
the requirements of the Exchange Act and will 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, in the light of the
circumstances under which they are made, not misleading.
(b) The Company warrants and represents that the Purchased Securities,
when issued in accordance with this agreement, the relevant Terms Agreement and
the Indenture, will be duly issued and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture.
(c) The Company agrees to indemnify, defend and hold harmless each
Underwriter, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Act or the Exchange Act or otherwise, insofar as
such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof) or in a Prospectus (the term Prospectus for
the purpose of this Section 7(c) being deemed to include any preliminary
prospectus, the Prospectus and the Prospectus as amended or supplemented), or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading;
provided, however, that the indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, expense, liability or claim purchased the
Purchased Securities which are the subject thereof (or to the benefit of any
person controlling such Underwriter) if the Prospectus corrected any such
alleged untrue statement or omission and if such Underwriter failed to send or
give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Purchased Securities to such person. The
foregoing indemnification shall not cover any such loss, expense, liability or
claim, however, which arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use with reference to such Underwriter in such
Registration Statement or in such Prospectus or arises out of or is based upon
any omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement or
Prospectus or necessary to make such information not misleading. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or any controlling person of that
Underwriter.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such
action and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such
case, but the
Exhibit 1.1 - Page 7
fees and expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of
such action or the Company shall not have employed counsel to have charge of
the defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by the Company; provided, however, the Company
shall not be obligated to pay the fees and expenses of more than one such
counsel (which shall be selected by you) for the indemnified parties. Anything
in this paragraph to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent. The Company's indemnity agreement contained in this Section
7(c) and its warranties and representations contained in this agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or controlling person, and shall survive any
termination of this Agreement or the Terms Agreement or the issuance, sale and
delivery of the Purchased Securities. The Company agrees promptly to notify
the Underwriters of the commencement of any litigation or proceedings against
the Company or any of its officers or directors in connection with the issuance
and sale of the Purchased Securities or the Registration Statement or
Prospectus.
(d) Each Underwriter warrants and represents that the information
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement or the Prospectus with
reference to such Underwriter does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection with
such information required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading.
(e) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or severally, the Company
or any such person may incur under the Act or the Exchange Act or otherwise,
insofar as such loss, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof), or
in the Prospectus (the term Prospectus for the purpose of this Section 7(e)
being deemed to include any preliminary prospectus, the Prospectus and the
Prospectus as amended or supplemented if the Company shall furnish to the
Underwriters an amended Prospectus or amendments or supplements to the
Prospectus after the date of any Terms Agreement), or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration Statement or
Prospectus or necessary to make such information not misleading. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the
institution of such action and such Underwriter shall assume the defense of
such action, including the employment of counsel and payment of expenses. The
Company or such person shall have the right to employ its or his own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection with
the defense of such action or such Underwriter shall not have employed counsel
to have charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by such Underwriter;
provided, however, such Underwriter shall not be obligated to pay the fees and
expenses of more than one such counsel (which shall be selected by the Company)
for the indemnified parties. Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained in this Section
7(e) shall remain in full force and
Exhibit 1.1 - Page 8
effect regardless of any investigation made by or on behalf of the Company or
such person, and shall survive any termination of this Agreement or the Terms
Agreement or the issuance, sale and delivery of the Purchased Securities. Each
Underwriter agrees promptly to notify the Company of the commencement of any
litigation or proceedings against such Underwriter in connection with the
issuance and sale of the Purchased Securities or the Registration Statement or
Prospectus.
8. Parties at Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Section 7 hereof,
and their respective successors, assigns, executors and administrators, and no
other person (including a purchaser, as such purchaser, from any of the
Underwriters of any of the Purchased Securities) shall acquire or have any
right under or by virtue of this Agreement.
9. Counterparts: This instrument may be signed by the parties in
counterparts which together shall constitute one and the same agreement between
the parties and shall become effective at such time as each of the parties
shall have signed such counterparts and shall have notified the other party
thereof.
10. Construction: This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
If the foregoing correctly sets forth the understanding between the
Company and you, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
ANHEUSER-BUSCH COMPANIES, INC.
By:__________________________
Treasurer
[Underwriter]
By:__________________________
Exhibit 1.1 - Page 9
Schedule I
DELAYED DELIVERY CONTRACT
, 199
ANHEUSER-BUSCH COMPANIES, INC.
One Busch Place
St. Louis, Missouri 63118
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Anheuser-Busch Companies,
Inc. (the Company), and the Company agrees to sell to the undersigned,
$________________________________
principal amount of the Company's (state title of issue) (the Securities)
offered by the Company's Prospectus dated ______________, 1995 and a Prospectus
Supplement dated _______, 199_, receipt of copies of which is hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract.
The undersigned agrees to purchase such Securities in the principal
amounts and on the delivery dates (the Delivery Dates) set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ --------------
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in immediately available funds at the Corporate Trust
Office of Chemical Bank (or at such other place as the undersigned and the
Company shall agree) at 11:00 A.M., New York City Time, on such Delivery Date
upon issuance and delivery to the undersigned of the Securities to be purchased
by the undersigned on such Delivery Date in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Securities on each Delivery Date
shall be subject to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the undersigned is subject and (2) the
Company shall have sold, and delivery shall have taken place, to Underwriters
of such principal amount of the Securities as is to be sold and delivered to
them.
Promptly after completion of the sale and delivery to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by copies of the opinions of counsel
for the Company delivered to the Underwriters.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Securities hereby
agreed to be purchased and (b) the undersigned does not contemplate selling the
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New York.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so signed.
Very truly yours,
________________________________________
By: ___________________________________
________________________________________
________________________________________
Address
Accepted, as of the date first above written
Anheuser-Busch Companies, Inc.
By: ________________________________________
Exhibit 1.1 - Page 2
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------