Exhibit 4.6
EAGLE FAMILY FOODS HOLDINGS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 23, 1998, among the
investors listed from time to time on Schedule I hereto (the "Investors") and
Eagle Family Foods Holdings, Inc., a Delaware corporation (the "Company").
R E C I T A L S
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WHEREAS, the Investors have (a) pursuant to the terms of the
subscription agreements dated as of even date herewith, by and among the Company
and the Investors (collectively, the "Subscription Agreements"), agreed to
purchase shares of Common Stock, par value $0.01 per share, of the Company
("Common Stock") and shares of Series A Non-Voting Preferred Stock, par value
$0.01 per share, of the Company (the "Preferred Stock") and/or (b) pursuant to
the terms of the restricted stock agreement under the Company's 1998 Stock
Incentive Plan (the "Plan"), received grants of restricted Common Stock, subject
to certain vesting requirements and forfeiture provisions; and
WHEREAS, the Company has agreed, as a condition precedent to the
Investors' obligations under the Subscription Agreements and/or in conjunction
with the grants of restricted Common Stock pursuant to the Plan, to grant the
Investors certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
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As used in this Agreement, the following terms have the respective meaning
set forth below:
Commission: shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
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amended;
GEI: shall mean GE Investment Private Placement Partners II, a
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Limited Partnership;
Holder: shall mean any holder of Registrable Securities;
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Initial Public Offering: shall mean the initial public offering of
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shares of Common Stock pursuant to a registration under the Securities Act;
Initiating Holder: shall mean either GEI or Warburg;
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Person: shall mean an individual, partnership, joint-stock company,
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corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof;
register, registered and registration: shall mean a registration
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effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: (A) the shares of Common Stock issued to the
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Investors pursuant to the Subscription Agreements, (B) the shares of Preferred
Stock issued to the Investors pursuant to the Subscription Agreements, (C) any
additional shares of Common Stock or Preferred Stock acquired by the Investors
(other than pursuant to a stock option plan or any other incentive plan), (D)
the shares of Common Stock issued to the Investors on the date hereof under the
Plan, which have theretofore become vested and have not theretofore become
forfeited under the Plan, and (E) any capital stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares of Common Stock referred to in clauses (A), (B), (C)
or (D) above, provided that notwithstanding the provisions of clause (D) above
and this clause (E), "Registrable Securities" shall not include any shares
previously registered on a registration relating solely to the Plan;
Registration Expenses: shall mean (x) all expenses incurred by the
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Company in compliance with Sections 2(a) and (b) hereof, excluding Selling
Expenses, but including, without limitation, all registration and filing fees,
printing expenses, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company) and (y) all reasonable fees and disbursements of one
counsel retained by the Holders of a majority of Registrable Securities;
Security, Securities: shall have the meaning set forth in Section
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2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended;
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Selling Expenses: shall mean all underwriting discounts and selling
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commissions applicable to the sale of Registrable Securities; and
Warburg: Warburg, Xxxxxx Ventures, L.P., a Delaware limited
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partnership.
2. REGISTRATION RIGHTS
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(a) Requested Registration.
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(i) Request for Registration. If the Company shall receive from
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an Initiating Holder, at any time, a written request that the Company
effect any registration with respect to all or a part of the Registrable
Securities, the Company will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(B) as soon as practicable, use its diligent best efforts
to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations
issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a
written request received by the Company within 10 business days after
written notice from the Company is given under Section 2(a)(i)(A)
above; provided that the Company shall not be obligated to effect,
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or take any action to effect, any such registration pursuant to this
Section 2(a):
(w) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act or applicable rules or
regulations thereunder;
(x) (i) With respect to a request for registration of
shares of Common Stock, after the Company has effected two (2) such
registrations pursuant to this Section 2(a) requested by the
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Initiating Holder (which shall not preclude the other Initiating
Holder from making such a request if the Company has not already
effected two (2) such registrations pursuant to this Section 2(a) for
such other Initiating Holder) and (ii) with respect to a request for
registration of shares of Preferred Stock, after the Company has
effected two (2) such registrations pursuant to this Section 2(a)
requested by the Initiating Holder (which shall not preclude the other
Initiating Holder from making such a request if the Company has not
already effected two (2) such registrations pursuant to this Section
2(a) for such other Initiating Holder), and, in each case, such
registrations have been declared or ordered effective and the sales of
such Registrable Securities shall have closed;
(y) If the Registrable Securities requested by all Holders
to be registered pursuant to such request do not have an anticipated
aggregate public offering price (before any underwriting discounts and
commissions) of not less than $15,000,000 (or $25,000,000 if such
requested registration is the Initial Public Offering); or
(z) If at the time of any request to register Registrable
Securities, the Company is engaged or has fixed plans to engage within
thirty (30) days of the time of the request in (1) a registered public
offering as to which the Holders may include Registrable Securities
pursuant to Section 2(b) or (2) an acquisition, financing or other
material transaction which, in the good faith determination of the
Board of Directors of the Company, would be adversely affected by the
requested registration to the material detriment of the Company. In
such event, the Company may, at its option, direct that such request
be delayed for a period not in excess of three months from the
effective date of such offering or the date of the determination by
the Board of Directors, as the case may be, such right to delay a
request to be exercised by the Company not more than once in any one-
year period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2(a)(ii) below,
include other securities, other than Registrable Securities, of the Company
which are held by the other stockholders ("Other Stockholders") of the Company.
The registration rights set forth in this Section 2 may be assigned,
in whole or in part, to any permitted transferee of Registrable Securities (who
shall be bound by all obligations of this Agreement).
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Holders holding a majority of the Registrable Securities requested to
be registered may, at any time prior to the effective date of the registration
statement relating to such registration, revoke such request, without liability
to the Company, such Holders, any of the other Holders or the Other
Stockholders, by providing a written notice to the Company revoking such
request.
(ii) Underwriting. If the Initiating Holders intend to
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distribute the Registrable Securities covered by their request by means of
an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a).
If shares held by Other Stockholders are requested by such Other
Stockholders to be included in any registration pursuant to this Section 2, the
Company shall condition such inclusion on their acceptance of the further
applicable provisions of this Section 2. The Initiating Holders whose shares
are to be included in such registration and the Company shall (together with all
Other Stockholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such underwriting
by such Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 2(a), if the representative
advises the Holders in writing that marketing factors require a limitation on
the number of shares to be underwritten or a limitation on the inclusion of
shares held by directors and officers of the Company, the securities of the
Company held by Other Stockholders shall be excluded from such registration to
the extent so required by such limitation. If, after the exclusion of such
shares, further reductions are still required, the securities of the Company
held by each Holder other than the Initiating Holders shall be excluded from
such registration to the extent so required by such limitation. Thereafter, if
still further reductions are required, the number of shares included in the
registration by each Initiating Holder shall be reduced on a pro rata basis
(based on the number of shares held by such Initiating Holder), by such minimum
number of shares as is necessary to comply with such request. No Registrable
Securities or any other securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Other Stockholder who has requested inclusion in such registration as
provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company and officers and
directors of the Company may include its or their securities for its or their
own account in such registration if the representative so agrees and
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if the number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
(iii) Other Registration Rights. The Company shall not grant
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any registration rights inconsistent with the provisions of this Section
2(a) and in granting any demand registration rights hereafter shall provide
that the Holders shall have the right to notice of the exercise of any such
demand registration right and to participate in such registration on a pro
rata basis.
(iv) Underwriter Selection. Notwithstanding anything to the
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contrary contained in this Agreement, so long as GEI is a holder of
Registrable Securities, no managing underwriter or representative of the
underwriters in any registration of the Company's securities effected
pursuant to this Agreement in which General Electric Company owns a direct
or indirect interest of five percent (5%) or more shall be selected absent
the prior written consent of GEI.
(b) Company Registration.
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(i) If the Company shall determine to register any of its equity
securities either for its own account or any Other Stockholders, other than
a registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration on
any registration form which does not permit secondary sales or does not
include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company will:
(A) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(B) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a
written request or requests, made by the Holders within fifteen (15)
days after receipt of the written notice from the Company described in
clause (A) above, except as set forth in Section 2(b)(ii) below. Such
written request may specify all or a part of the Holders' Registrable
Securities of the same class of equity securities being registered
under such registration statement.
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(ii) Underwriting. If the registration of which the Company
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gives notice is for a registered public offering involving an underwriting,
the Company shall so advise each of the Holders as a part of the written
notice given pursuant to Section 2(b)(i)(A). In such event, the right of
each of the Holders to registration pursuant to this Section 2(b) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable Securities in the underwriting to
the extent provided herein. The Holders whose shares are to be included in
such registration shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the representative of
the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the
representative determines that marketing factors require a limitation on
the number of shares to be underwritten or a limitation on the inclusion of
shares held by directors and officers of the Company, and (x) if such
registration is the Initial Public Offering, the representative may
(subject to the allocation priority set forth below) exclude from such
registration and underwriting some or all of the Registrable Securities
which would otherwise be underwritten pursuant hereto to the extent so
required by such limitation, and (y) if such registration is other than the
Initial Public Offering, the representative may (subject to the allocation
priority set forth below) limit the number of Registrable Securities to be
included in the registration and underwriting to not less than twenty five
percent (25%) of the total number of shares to be included in such
underwritten offering. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities
that are entitled to be included in the registration and underwriting shall
be allocated in the following manner: The securities of the Company held
by officers, directors and Other Stockholders (other than Registrable
Securities and other than securities held by holders who by contractual
right demanded such registration ("Demanding Holders")) shall be excluded
from such registration and underwriting to the extent required by such
limitation, and, if a limitation on the number of shares is still required,
the number of shares that may be included in the registration and
underwriting by each of the Holders other than the Demanding Holders shall
be excluded from such registration to the extent so required by such
limitation. Thereafter, if still further reductions are required, the
number of shares included in the registration by each of the Demanding
Holders shall be reduced, on a pro rata basis (based on the number of
shares held by such Demanding Holders), by such minimum number of shares as
is necessary to comply with such limitation. If any of the Holders or any
officer, director or Other Stockholder
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disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(iii) Number and Transferability. Each of the Holders shall be
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entitled to have its shares included in an unlimited number of
registrations pursuant to this Section 2(b). The registration rights
granted pursuant to this Section 2(b) shall be assignable, in whole or in
part, to any permitted transferee of the Registrable Securities (who shall
be bound by all obligations of this Agreement).
(iv) Underwriter Selection. Notwithstanding anything to the
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contrary contained in this Agreement, so long as GEI is a holder of
Registrable Securities, no managing underwriter or representative of the
underwriters in any registration of the Company's securities effected
pursuant to this Agreement in which General Electric Company owns a direct
or indirect interest of five percent (5%) or more shall be selected absent
the prior written consent of GEI.
(c) Form S-3. Following the Initial Public Offering, the Company
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shall use its best efforts to qualify for registration on Form S-3 for secondary
sales. After the Company has qualified for the use of Form S-3, the Investors
shall have the right to request unlimited registrations on Form S-3 (such
requests shall be in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of shares by
such holders), subject only to the following:
(i) The Company shall not be required to effect a registration
pursuant to this Section 2(c) unless the Holder or Holders requesting
registration propose to dispose of shares of Registrable Securities having
an aggregate price to the public (before deduction of underwriting
discounts and expenses of sale) of more than $5,000,000.
(ii) The Company shall not be required to effect a registration
pursuant to this Section 2(c) within 180 days of the effective date of the
most recent registration pursuant to this Section 2 in which securities
held by the requesting Holder could have been included for sale or
distribution.
(iii) The Company shall not be required to effect any
registration pursuant to this Section 2(c) in any particular jurisdiction
in which the Company would be required to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such
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jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder.
(iv) The Company shall not be required to effect a registration
pursuant to this Section 2(c) if at the time of any request to register
Registrable Securities, the Company is engaged or has fixed plans to engage
within thirty (30) days of the time of the request in (A) a registered
public offering as to which the Holders may include Registrable Securities
pursuant to Section 2(b) or (B) an acquisition, financing or other material
transaction which, in the good faith determination of the Board of
Directors of the Company, would be adversely affected by the requested
registration to the material detriment of the Company. The Company may, at
its option, direct that such request be delayed for a period not in excess
of three months from the effective date of such offering or the date of the
determination by the Board of Directors, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any
one-year period.
The Company shall give prompt written notice to all Holders of the receipt
of a request for registration pursuant to this Section 2(c) and shall provide a
reasonable opportunity for other Holders to participate in the registration,
provided that if the registration is for an underwritten offering, the terms of
Section 2(a)(ii) shall apply to all participants in such offering. Subject to
the foregoing, the Company will use its best efforts to effect promptly the
registration of all shares of Registrable Securities on Form S-3 to the extent
requested by the Holder or Holders thereof for purposes of disposition.
(d) Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to this
Section 2 (whether or not such registration, qualification or compliance is
effectuated) shall be borne by the Company, and all Selling Expenses shall be
borne by the Holders of the securities so registered (or proposed to be
registered) pro rata on the basis of the number of their shares so registered
(or proposed to be registered).
(e) Registration Procedures. In the case of each registration
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effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company
will:
(i) prior to filing a registration statement or prospectus or
any amendment or supplement thereto, furnish to each Holder with
Registrable Securities covered by such registration statement, one counsel
selected by the Holders of a majority of the Registrable Securities covered
by such registration statement or prospectus, and each underwriter,
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if any, of the Registrable Securities covered by such registration
statement or prospectus, copies of such document as proposed to be filed,
together with exhibits thereto, which documents will be subject to review
and approval by the foregoing within 5 days after delivery, and thereafter
furnish each such Holder, counsel, and underwriter, if any, such number of
copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents incident thereto as such Holder, counsel or underwriter, if
any, may from time to time reasonably request;
(ii) after the filing of the registration statement, the Company
will promptly notify each Holder with Registrable Securities covered by
such registration statement, one counsel selected as described in clause
(i) above, and each underwriter, if any, of the Registrable Securities
covered by such registration statement or prospectus, of any stop order
issued or threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered;
(iii) keep such registration effective for a period of one
hundred twenty (120) days or until the Holders, as applicable, have
completed the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that (A) such 120-day
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period shall be extended for a period of time equal to the period during
which the Holders, as applicable, refrain from selling any securities
included in such registration in accordance with provisions in Section 2(i)
hereof; and (B) in the case of any registration of Registrable Securities
on Form S-3 which are intended to be offered on a continuous or delayed
basis, such 120-day period shall be extended until all such Registrable
Securities are sold, provided that Rule 415, or any successor rule under
the Securities Act, permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (1) includes any prospectus
required by Section 10(a) of the Securities Act or (2) reflects facts or
events representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (1) and (2) above to be contained in
periodic reports filed pursuant to Section 12 or 15(d) of the Exchange Act
in the registration statement;
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(iv) use its best efforts to (A) register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States as any applicable Holder reasonably (in
light of such Holder's intended plan of distribution) requests and (B)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities in the United States as may be
necessary by virtue of the business and operations of the Company and do
any and all other acts and things that may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the
Registrable Securities owned by such Holder; provided that the Company will
not be required to (1) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph,
(2) subject itself to taxation in any such jurisdiction, or (3) consent to
general service of process in any such jurisdiction;
(v) immediately notify each Holder of Registrable Securities
covered by such registration at any time when a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of
any event requiring the preparation of a supplement or amendment to such
prospectus and promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not include 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 not
misleading in the light of the circumstances then existing, and promptly
deliver to each such Holder, their counsel and underwriter, if any, any
such supplement or amendment;
(vi) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (A) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters
in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders participating in such registration,
addressed to the underwriters, if any, and to the Holders participating in
such registration and (B) a letter, dated as of such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders
participating in such registration,
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addressed to the underwriters, if any, and if permitted by applicable
accounting standards, to the Holders participating in such registration.
(vii) use its best efforts to cause all such Registrable
Securities to be listed on a national securities exchange in the United
States or NASDAQ and on each securities exchange on which similar
securities issued by the Company may then be listed, and enter into such
customary agreements including a listing application and indemnification
agreement in customary form, and to provide a transfer agent and registrar
for such Registrable Securities covered by such registration statement no
later than the effective date of such registration statement;
(viii) enter into such customary agreements (including an
underwriting agreement or qualified independent underwriting agreement, in
each case in customary form) and take all such other actions as the Holders
of a majority of the Registrable Securities being covered by such
registration statement or the underwriters retained by such Holders, if
any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities, including customary representations,
warranties, indemnities and agreements;
(ix) make available for inspection, during business hours of
the Company, by an Holder of Registrable Securities covered by such
registration statement, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney accountant or
other agent retained by any such Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries, if any, as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's officers directors and employees, and those of the Company's
affiliates, if any, to supply all information and respond to all inquiries
reasonably requested by any such registration statement;
(x) use all commercially reasonable efforts to obtain a "cold
comfort" letter from the Company's appointed auditors in customary form and
covering such matters of the type customarily covered by "cold comfort"
letters as the Holders of a majority in interest of the Registrable
Securities being sold reasonably request; and
(xi) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make available to the Holders as soon as reasonably practicable, an
earnings statement covering a period of a least twelve months beginning
after the effective date of the registration statement (as the term
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"effective date" is defined in Rule 158(c) under the Securities Act) which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(f) Indemnification.
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(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders (within the meaning of the Securities Act),
with respect to each registration which has been effected pursuant to this
Section 2, and each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any
preliminary, final or summary prospectus, offering circular or other
document (including any related registration statement, notification or the
like, or any amendment or supplement to any of the foregoing) incident to
any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or any violation (or alleged violation) by the Company of the
Securities Act or the Exchange Act or any rule or regulation thereunder or
of any applicable state or common law applicable to the Company and
relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each
of the Holders, each of its officers, directors and partners, and each
person controlling each of the Holders, each such underwriter and each
person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending
any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission based upon and in conformity with written
information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein. The foregoing indemnification
shall remain in effect regardless of any investigation by any indemnified
party and shall survive any transfer or assignment by a Holder of its
Registrable Securities or of its rights pursuant to this Agreement.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify on a several, but
not joint basis, the Company, each of its directors and officers and each
underwriter, if any, of the Company's securities covered by
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such a registration statement, each person who controls the Company or such
underwriter, each Other Stockholder and each of their officers, directors,
and partners, and each person controlling such Other Stockholder against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue
statement) made by such Holder of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or
any omission (or alleged omission) made by such Holder to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
directors, officers, partners, persons, underwriters or control persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of
-------- -------
each of the Holders hereunder shall be limited to an amount equal to the
net proceeds to such Holder of securities sold pursuant to such
registration statement or prospectus.
(iii) Each party entitled to indemnification under this Section
2(f) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and
the Indemnified Party may participate in such defense at such party's
expense (unless the Indemnified Party shall have reasonably concluded that
there may be a conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses of
counsel shall be at the expense of the Indemnifying Party), and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2 except to the extent the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving
14
by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified
Party shall promptly furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations, provided, however,
that 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 any such fraudulent
misrepresentation. The relative fault of the Indemnifying Party and of the
Indemnified Party 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 Indemnifying Party or by the Indemnified Party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, no Holder will be required to contribute any
amount pursuant to this paragraph (f) in excess of the total price at which
the Registrable Securities of such Holder were offered to the public (less
underwriting discounts and commissions, if any). Each Holder's obligations
to contribute pursuant to this paragraph are several in the proportion that
the proceeds of the offering received by such Holder bears to the total
proceeds of the offering received by all the applicable Holders and not
joint.
(v) The foregoing indemnity agreement of the Company and Holders
is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the Commission at the
time the registration statement in question becomes effective or the
amended prospectus filed with the Commission pursuant to Commission Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not
15
inure to the benefit of (A) any underwriter if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act or (B) in circumstances
where no underwriter is acting as such in the offer and sale in question,
any Holder who (1) either directly or through its agent provided the
preliminary prospectus to the Person asserting the loss, liability, claim
or damage, (2) was furnished with a copy of the Final Prospectus, and (3)
did not furnish or cause to be furnished the Final Prospectus to the Person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(vi) Any indemnification payments required to be made to an
Indemnified Party under this Section 2(f) shall be made as the related
claims, losses, damages, liabilities or expenses are incurred.
(g) Information by the Holders. Each of the Holders holding
--------------------------
securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 2. No Investor shall be required, in connection
with any underwriting agreements entered into in connection with any
registration, to provide any information, representations or warranties, or
covenants with respect to the Company, its business or its operations, and such
Investors shall not be required to provide any indemnification with respect to
any registration statement except as specifically provided for in Section
2(f)(ii) hereof.
(h) Rule 144 Reporting.
------------------
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times from and after the effective date of the first
registration under the Securities Act filed by the Company for an offering
of its securities to the general public;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and
16
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any time
from and after the effective date of the first registration statement filed
by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing the Holder to sell any
such securities without registration.
(i) "Market Stand-off" Agreement. Each of the Holders agrees, if
----------------------------
requested by the Company and an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Securities held
by such Holder during the 90-day period (or such longer period if requested by
such underwriter, up to 180 days) following the effective date of a registration
statement of the Company filed under the Securities Act, provided that:
(i) such agreement only applies to the Initial Public Offering;
and
(ii) all officers and directors of the Company enter into similar
agreements.
If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 90-day period (or such longer period if
requested by such underwriter, up to 180 days). The provisions of this Section
2(i) shall be binding upon any transferee who acquires Registrable Securities,
whether or not such transferee is entitled to the registration rights provided
hereunder.
(j) Termination. The registration rights set forth in this Section 2
-----------
shall not be available to any Holder if, in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)). The Company will arrange for a provision to the
transfer agent for such shares of an opinion of counsel in connection with any
such sale under Rule 144.
3. MISCELLANEOUS
-------------
17
(a) Directly or Indirectly. Where any provision in this Agreement
----------------------
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections
----------------
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(d) Notices.
-------
(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or by facsimile or mailed by overnight
courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to Eagle Family Foods Holdings,
Inc., 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxx, Esq. (Fax. No.: (000) 000 0000), or at such other
address or facsimile number as it may have furnished in writing to the
Investors;
(B) if to the Investors, at the address or facsimile number
listed on Schedule I hereto, or at such other address or facsimile
number as may have been furnished in writing to the Company.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(e) Reproduction of Documents. This Agreement and all documents
-------------------------
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further
18
reproduction of such reproduction shall likewise be admissible in evidence.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties.
(g) Entire Agreement; Amendment and Waiver. This Agreement
--------------------------------------
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Investors holding a 66-2/3% majority of
the then outstanding Registrable Securities.
(h) Severability. In the event that any part or parts of this
------------
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(i) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
19
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
EAGLE FAMILY FOODS HOLDINGS, INC.
By:/s/ Xxxx O'X. Xxxxxx
-------------------------
Name: Xxxx O'X. Xxxxxx
Title: Chief Executive Officer,
President and Director
INSTITUTIONAL INVESTORS:
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, A LIMITED PARTNERSHIP
By: GE Investment Management
Incorporated, its General
Partner
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By:/s/ Xxxxxxx Xxx
-------------------------
Name: Xxxxxxx Xxx
Title: Partner
ADDITIONAL INVESTORS:
[SIGNATURE PAGES FOLLOW]
20
By:/s/ Xxxxxxx Xxxxx
----------------------
Xxxxxxx Xxxxx
By:/s/ Xxxx O'X. Xxxxxx
----------------------
Xxxx O'X. Xxxxxx
By:/s/ Xxxxxxx Xxxxx
----------------------
Xxxxxxx Xxxxx
By:/s/ Xxxxxxxx X. Xxxx
----------------------
Xxxxxxxx X. Xxxx
By:/s/ Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx
21
By:/s/ Xxxxx Xxxxxxxx
----------------------
Xxxxx Xxxxxxxx
By:/s/ A.L. Xxxx Xxxxxxx
----------------------
A.L. Xxxx Xxxxxxx
By:/s/ Xxxx Xxxx
----------------------
Xxxx Xxxx
By:/s/ Xxxx X. Xxxxx
----------------------
Xxxx X. Xxxxx
By:/s/ Xxxxxxxx Xxxxxxxx
----------------------
Xxxxxxxx Xxxxxxxx
By:/s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
22
By:/s/ Xxxxxxx X. Xxxx
----------------------
Xxxxxxx X. Xxxx
By:/s/ Xxx X. Xxxxxxx
----------------------
Xxx X. Xxxxxxx
23
By:/s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
24
SCHEDULE I
NAME AND ADDRESS OF INVESTOR:
-----------------------------
INSTITUTIONAL INVESTORS:
GE Investment Private Placement Partners II,
a Limited Partnership
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
(Fax No.: (000) 000-0000)
Warburg, Xxxxxx Ventures, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx
(Fax No.: (000) 000-0000)
ADDITIONAL INVESTORS:
Xxxxx Xxxxxxxx
0 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxx X. Xxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Xxxx Xxxx
Rural Xxxxx 0
X.X.Xxx 00
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
26
Xxxxxxx X. Xxxxx
00 Xxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxx O'X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Tel: 000-000-0000
Xxxxxxxx X. Xxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
Tel: 000.000.0000
A.L. Xxxx Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Tel: 000-000-0000
Xxxxx Xxxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxxxxxxx 00000
Tel: 000.000.0000
27
Xxxxxxx X. Xxxx
0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Xxx X. Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
28
