EXHIBIT 1.1
PEPSIAMERICAS, INC.
UNDERWRITING AGREEMENT
$300,000,000
5.75% Notes due 2012
July 11,
2007
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Morgan
Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies
and Gentlemen:
PepsiAmericas, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representative (collectively, the “Representative”),
$300,000,000 aggregate principal amount of its 5.75% Notes due 2012
(the “Securities”). The Securities will be issued under
an indenture, dated as of August 15, 2003 (as amended or
supplemented with respect to such Securities, the
“Indenture”), between the Company and Wells Fargo Bank,
National Association, as trustee (the “Trustee”).
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Securities, as follows:
1. Registration
Statement . The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Securities Act”), an automatic shelf registration
statement on Form S-3 (File No. 333-134179), including a
prospectus, relating to the Securities. Such registration
statement, as amended at the time it became effective, including
the information, if any, deemed pursuant to Rule 430B or 430C
under the Securities Act to be part of the registration statement
at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” with reference to the
Securities means each prospectus included in such registration
statement (and any amendments thereto) before it becomes effective,
any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act, the prospectus included in the
Registration Statement at the time of its effectiveness that omits
Rule 430 Information and any prospectus supplement that omits
final pricing terms that is filed with the Commission pursuant to
Rule 424(b) under the Securities Act; and the term
“Prospectus” means the final prospectus and prospectus
supplement in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act)
in connection with sales of the Securities. Any reference in this
Agreement to the Registration Statement, any Preliminary 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 as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized
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terms
used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of
the Securities were first made (the “Time of Sale”),
the Company had prepared the following information (collectively,
the “Time of Sale Information”): a Preliminary
Prospectus dated July 11, 2007, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex A hereto, including the final term
sheet relating to the Securities.
2. Purchase of the
Securities by the Underwriters . The Company agrees to issue
and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal
amount of Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price equal to 99.125% of the
principal amount thereof. The Company will not be obligated to
deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
Payment for and delivery of the
Securities will be made at 10:00 A.M., New York City time, on
July 18, 2007, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Representative and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to
herein as the “Closing Date”. Payment for the
Securities shall be made by wire transfer in immediately available
funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository
Trust Company, for the account of the Underwriters, of one global
note representing the Securities (the “Global Note”),
with any transfer taxes payable in connection with the sale of the
Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date.
The Company acknowledges and agrees
that the Underwriters are acting solely in the capacity of an
arm’s length contractual counterparty to the Company with
respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representative nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and
Warranties of the Company . The Company represents and warrants
to each Underwriter that:
(a) Preliminary
Prospectus . No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the Securities Act and did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use in any Preliminary Prospectus.
(b) Time of Sale
Information . The Time of Sale Information, at the Time of Sale
did not, and at the Closing Date will 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;
provided that the Company makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representative expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been
omitted from the Time of Sale Information and no
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statement of material fact included in the Time of Sale Information
that is required to be included in the Prospectus has been omitted
therefrom.
(c) Issuer Free Writing
Prospectus . Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clause (i) below)
an “Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex
A hereto and other written communications approved in writing in
advance by the Representative. Each such Issuer Free Writing
Prospectus did not and will not conflict with the information
contained in the Registration Statement, the Time of Sale
Information or the Prospectus, complied in all material respects
with the Securities Act, has been filed in accordance with the
Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus filed prior to the first
use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will 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; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
any Issuer Free Writing Prospectus.
(d) Registration Statement
and Prospectus . The Registration Statement is an
“automatic effective registration statement” as defined
under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering of
the Securities has been initiated or threatened by the Commission;
as of the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement and such
amendment complied and 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”), and neither
the Registration Statement nor any amendment thereto relating to
the offering contemplated hereby contained or will contain any
untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and
as of the Closing Date, the Prospectus and any amendment or
supplement thereto complied and will comply in all material
respects with the Securities Act and the Trust Indenture Act, and
neither the Prospectus nor the Prospectus as amended or
supplemented will contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
of the Trustee under the Trust Indenture Act or (ii) any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and any amendment
thereto and the Prospectus and any amendment or supplement
thereto.
(e) Incorporated
Documents . The documents incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale
Information, when they were, are or will be filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act, and none of such documents contained or will
contain any untrue statement of a material fact or omitted or will
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 were made, not misleading;
provided, however , that, as to future filings, such
representation relates only to those future filings made prior to
the termination of the offering.
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(f) Financial Statements
. The financial statements and the related notes thereto included
or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial
position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information
shown thereby.
(g) Disclosure Controls
. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure
that information required to be disclosed by the Company in reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is
accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange
Act.
(h) Accounting Controls
. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to
policies and procedures that: (i) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company;
(ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements
in accordance with generally accepted accounting principles, and
that receipts and expenditures of the Company are being made only
in accordance with authorizations of management and directors of
the Company; and (iii) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or
disposition of the Company’s assets that could have a
material effect on the financial statements. Except as disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus, there are no material weaknesses in the Company’s
internal controls.
(i) Sarbanes-Oxley Act .
There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes-Oxley Act”), including
Section 402 related to loans and Sections 302 and 906
related to certifications.
(j) Status under the
Securities Act . The Company is not an ineligible issuer and is
a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the
Securities Act in connection with the offering of the Securities.
The Company has paid the registration fee for this offering
pursuant to Rule 456(b)(1) under the Securities Act or will
pay such fees within the time period required by such rule (without
giving effect to the proviso therein) and in any event prior to the
Closing Date.
4. Further Agreements of the
Company . The Company covenants and agrees with each
Underwriter that:
(a) Required Filings .
The Company will file the Preliminary Prospectus and the final
Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required
by Rule 433 under the Securities Act, including the final term
sheet relating to the Securities; and will file promptly 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
subsequent to the date of the Prospectus and for so long as the
delivery of a
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prospectus is required (or but for the exemption in Rule 172
under the Securities Act would be required to be delivered) in
connection with the offering or sale of the Securities; and the
Company will furnish copies of the Preliminary Prospectus and the
Prospectus and each Issuer Free Writing Prospectus (to the extent
not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the second
business day next succeeding the date of this Agreement in such
quantities as the Representative may reasonably request. The
Company will pay the registration fees for the offering of the
Securities within the time period required by Rule 456(b)(i)
under the Securities Act prior to the Closing Date.
(b) Delivery of Copies .
The Company will deliver, without charge, (i) to the
Representative, two signed copies (or photostatic reproductions of
such signed copies) of the Registration Statement as originally
filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and documents incorporated by
reference therein and (ii) to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed
and each amendment thereto, in each case including all exhibits and
consents filed therewith and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the
Preliminary Prospectus and the Prospectus (including all amendments
and supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the
Representative may reasonably request. As used herein, the term
“Prospectus Delivery Period” means such period of time
after the first date of the public offering of the Securities as in
the opinion of counsel for the Underwriters a prospectus relating
to the Securities is required by law to be delivered (or would
required to be delivered but for the exemption in Rule 172
under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or
Supplements; Issuer Free Writing Prospectuses . Before
preparing, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment
or supplement to the Registration Statement or the Prospectus
relating to the offering contemplated hereby, the Company will
furnish to the Representative and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement, as the case may be, for review and will not prepare,
use, authorize, approve, refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or
supplement to which the Representative reasonably objects.
(d) Notice to the
Representative . With respect to the offering contemplated
hereby, the Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the
Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to
the Prospectus or any Issuer Free Writing Prospectus has been
filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from
the Commission relating to the Registration Statement or any other
request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose
or pursuant to Section 8A of the Securities Act; (v) of
the occurrence of any event within the Prospectus Delivery Period
as a result of which the Prospectus, the Time of Sale Information
or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered
or made available to a purchaser, not misleading; (vi) of the
receipt by the Company of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act; and (vii) of the receipt by the Company of any
notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any
such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification
of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
(e) Ongoing Compliance .
(1) If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when
the Prospectus is delivered or made available to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the
Prospectus to comply with
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law, the
Company will immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such
dealers as the Representative may designate, such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances existing when the Prospectus
is delivered or made available to a purchaser, be misleading or so
that the Prospectus will comply with law and (2) if at any
time prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading or (ii) it is
necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to
the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law.
(f) Blue Sky Compliance
. The Company will qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such
qualifications in effect so long as required for distribution of
the Securities; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any such jurisdiction
if it is not otherwise so subject.
(g) Earning Statement .
The Company will make generally available to its security holders
and the Representative as soon as practicable an earning statement
that satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder
covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Expenses . The
Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the
Underwriters for any expenses (including fees and disbursements of
counsel) incurred by them in connection with qualification of the
Securities for sale under the laws of such jurisdictions as the
Representative may reasonably designate and the printing of
memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities and for expenses
incurred in distributing the Preliminary Prospectus, the Prospectus
and any Issuer Free Writing Prospectus (and any amendment or
supplement thereto) to the Underwriters.
(i) Clear Market .
During the period from the date hereof through and including the
business day following the Closing Date, the Company will not,
without the prior written consent of the Representative, offer,
sell, contract to sell or otherwise dispose of any debt securities
issued or guaranteed by the Company and having a tenor of more than
one year.
(j) Record Retention .
The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with
Rule 433 under the Securities Act.
(k) Use of Proceeds .
The Company will apply the net proceeds from the sale of the
Securities as described in the Registration Statement, the Time of
Sale Information and the Prospectus under the heading “Use of
Proceeds.”
(l) Registration Statement
Renewal Deadline . If immediately prior to the third
anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, any of the
Securiti
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