REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 1, 1997 by and
among DIMON Incorporated, a Virginia corporation (the "Company"), and
each of the shareholders listed on the signature pages hereof (each, a
"Shareholder" and collectively the "Shareholders"). Capitalized terms
not otherwise defined herein shall have the meanings set forth in the
Stock Purchase Agreement, dated the date hereof, between the Company and
the Shareholders (the "Stock Purchase Agreement").
(1) Demand Registration
(a) Tabacalera S.A. At any time on or after April 1,
1998, and prior to March 31, 2001 (as extended as provided herein, the
"Registration Period"), but not more than twice, Tabacalera S.A.
("Tabacalera") shall have the right to require the Company to register
under the Securities Act of 1933, as amended (the "1933 Act"), such
number of shares of the DIMON Common Stock (as defined below) ("Common
Stock") or such principal amount of the DIMON Incorporated 6-1/4%
Convertible Subordinated Debentures due 2007 ("Convertible Debentures"),
in each case issued to Tabacalera at the Closing pursuant to the Stock
Purchase Agreement, or such number of shares of Common Stock issued upon
the conversion of any such Convertible Debentures, as it may request,
subject to the terms and condition of this Agreement. For purposes of
this Agreement, "Common Stock" means the Common Stock, no par value, of
DIMON Incorporated, or any other shares of capital stock of DIMON
Incorporated into which such stock shall be reclassified or changed (by
operation of law or otherwise). If the Common Stock has been so
reclassified or changed, or if DIMON Incorporated pays a dividend or
makes a distribution on its Common Stock in shares of capital stock, or
subdivides (or combines) its outstanding shares of Common Stock into a
greater (or smaller) number of shares of Common Stock, a share of Common
Stock shall be deemed to be such number of shares of capital stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to such reclassification, exchange,
dividend, distribution, subdivision or combination would be entitled.
(b) Folium Inc. At any time during the Registration
Period, but not more than twice, Folium Inc. ("Folium") shall have the
right to require the Company to register under the 1933 Act such number
of shares of Common Stock or such principal amount of the Convertible
Debentures, in each case issued to Folium at the Closing pursuant to the
Stock Purchase Agreement, or such number of shares of Common Stock issued
upon the conversion of any such Convertible Debentures, as it may
request, subject to the terms and condition of this Agreement.
(c) Notice of Request for Registration. Any request for
registration pursuant to Section 1(a) or (b) (a "Notice of Demand") shall
be made to the Company in writing specifying the amount of securities
requested to be registered and the proposed method of disposition. The
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Company shall promptly notify all other Shareholders in writing of the
receipt of any Notice of Demand and any Shareholder may elect (by written
notice sent to the Company within ten business days from the date of such
notice) to have such Shareholder's shares of Common Stock or Convertible
Debentures, as the case may be, included in such registration
(Tabacalera, Folium and any such Shareholders, and any shareholders
exercising registration rights pursuant to Section 2 hereof, being
hereinafter referred to as "Selling Shareholders").
(d) Registration. As expeditiously as possible, the
Company will use its reasonable best efforts to prepare and file a
registration statement under the 1933 Act for the purpose of registering
the offering and sale of all shares of Common Stock or Convertible
Debentures, as the case may be, designated in such request(s) (the
"Securities") and cause the same to be declared effective by the
Securities and Exchange Commission (the "SEC") as promptly as
practicable; provided, that (i) the Company and the Selling Shareholders
are entitled to register the Securities on Form S-3 (or a successor form)
or would be eligible to use such form but for the failure by the Company
to timely file all reports required to be filed by it under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), (ii) the
Company has not commenced or completed, whether for itself or a holder of
securities of the Company, within the previous six months an underwritten
public offering, and (iii) the Company's Board of Directors shall not
have determined in its good faith judgment (evidenced by a two-thirds
vote of the directors of the Company then in office) that the offering of
such Securities would be detrimental to the Company or its shareholders.
(e) Minimum Amounts. The Company will not be required to
register pursuant to any Notice of Demand (i) less than 1,000,000 shares
of Common Stock or shares of Common Stock having a market value of less
than $20 million, or (ii) less than $35 million in aggregate principal
amount of Convertible Debentures. The fair market value of Common Stock
shall be the closing price of Common Stock on the New York Stock
Exchange, Inc. (or other exchange or automated quotation system on which
the Common Stock is then listed or quoted) on the trading day immediately
following the Company's receipt of the Notice of Demand.
(f) Notwithstanding any other provision of this Agreement
to the contrary, a registration will not be deemed to have been effected by
this Section 1 if the underwriters in connection with such registration
shall have elected to terminate the applicable underwriting agreement in
accordance with its terms, provided that in no circumstances will the
Company be obligated to pay the fees and expenses associated with more
than four registrations pursuant to Section 1.
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2. Piggyback Registration
(a) During the Registration Period, if the Company shall
at any time propose to file on its own behalf and/or the behalf of any
other holders of Common Stock pursuant to this Agreement or otherwise a
registration statement under the 1933 Act of an offering of Common Stock
solely for cash on a form that would also permit registration of shares
of Common Stock held by the Shareholders, the Company shall give notice
of such proposed registration to each Shareholder as promptly as
possible, but in any event, at least 45 days before the initial filing
with the SEC of such registration statement, which notice shall set forth
the intended method of disposition of the shares proposed to be
registered by the Company. The notice shall offer to include in such
filing such number of shares of Common Stock as the Shareholders may
request (not to exceed the aggregate number of shares received by the
Shareholders pursuant to the Stock Purchase Agreement, less the number of
shares as to which the Shareholders have previously exercised
registration rights pursuant to this Agreement), subject to Section 2(b).
Each Shareholder desiring to have Common Stock registered under this
Section 2(a) shall advise the Company in writing within ten business days
after receipt of notice of such offer from the Company, setting forth the
number of shares of such Common Stock for which registration is
requested. The Company shall thereupon include in such filing the number
of shares of Common Stock for which registration is so requested, subject
to the provisions of Section 2(b), and shall use its best efforts to
effect registration under the 1933 Act of such shares.
(b) Notwithstanding the foregoing if the offering is of
shares by the Company: (i) the Company shall not be required to give
notice or to include shares in any such registration if the proposed
registration is primarily (A) a registration of a dividend reinvestment,
stock option, employee benefit or compensation plan or of securities
issued or issuable pursuant to any such plan or (B) a registration of
securities proposed to be issued in exchange for securities or assets of,
or in connection with a merger or consolidation with, another entity;
(ii) if the Company is advised in writing by its underwriters that the
inclusion of all or any portion of such shares would in their opinion
jeopardize the success of the proposed offering, the Company may exclude
all or such portion of such shares from registration; (iii) the offering
of such shares by the Selling Shareholders shall be on the same terms as
the offering by the Company; (iv) in the event other parties have similar
registration rights at the time of the offering, the number of shares to
be registered may be limited by the Company pursuant to clause (ii) of
this Section 2(b) on a pro rata basis according to the total amount of
shares owned by such parties or on such other basis as may be agreed upon
by such parties; provided, that no limitation shall apply to shares
offered by the Company for its own account; (v) the Company may, without
the consent of the Selling Shareholders, withdraw such registration
statement and abandon the proposed offering in which such persons had
requested to participate; and (vi) the Company shall be under no
obligation to any Selling Shareholder pursuant to Section 2(a) unless
such persons accept the terms of underwriting agreed upon by the Company
and its underwriters.
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(c) Notwithstanding the foregoing if the offering is of
shares by other holders of Common Stock: (i) if the Company or such other
holders is advised in writing by its underwriters that the inclusion of
all or any portion of such shares would in their opinion jeopardize the
success of the proposed offering, the Company or such other holders may
exclude all or such portion of such shares from registration; (ii) the
offering of such shares by the Selling Shareholders shall be on the same
terms as the offering by the other holders of Common Stock; (iii) in the
event other parties have similar registration rights at the time of the
offering, the number of shares to be registered may be limited by the
Company or such other holders pursuant to clause (i) of this Section 2(c)
on a pro rata basis according to the total amount of shares owned by such
parties or on such other basis as may be agreed upon by such parties;
provided that no limitation shall apply to shares offered by the
shareholder initiating the registration; (iv) the Company may, without
the consent of the Selling Shareholders, withdraw such registration
statement and abandon the proposed offering in which such persons had
requested to participate; and (v) the Company shall be under no
obligation to any Selling Shareholder pursuant to Section 2(a) unless
such persons accept the terms of underwriting agreed upon by the Company
and its underwriters.
3. Obligations of the Company
(a) If the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of
the Securities under the 1933 Act, the Company will, as expeditiously as
possible:
(i) prepare and file with the SEC a registration
statement with respect to the Securities and use its best efforts
to cause such registration statement to become and remain effective
for a period of time (not to exceed 180 days) required for the
disposition of the Securities by the Selling Shareholders;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the 1933 Act with respect to the sale or other disposition of
all Securities covered by such registration statement until the
earlier of such time as all of such Securities have been disposed
of in a public offering or the expiration of 180 days;
(iii) furnish to the Selling Shareholders such number of
copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents, as such Selling Shareholders
may reasonably request;
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(iv) notify the Selling Shareholder promptly and (if
requested by any such person) confirm such notice in writing, (i)
when a prospectus or prospectus supplement or post-effective
amendment has been filed, and, with respect to a registration
statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC for amendments or
supplements to a registration statement or related prospectus or
for additional information regarding such Shareholder, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness
of a registration statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (v) of the happening of any event that
requires the making of any changes in such registration statement,
prospectus or documents so that they will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein no misleading;
(v) use commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the
qualification or exemption from qualification of any of the
securities for sale in any jurisdiction in the United States and,
if any such order is issued, to obtain the withdrawal of such order
as soon as practicable;
(vi) if requested by the Selling Shareholder, furnish to
the Selling Shareholder and counsel for the Selling Shareholder,
without charge, one conformed copy of each registration statement
as declared effective by the SEC and of each post-effective
amendment thereto, in each case including financial statements and
schedules and all exhibits and reports incorporated or deemed to be
incorporated therein by reference; and such number of copies of the
preliminary prospectus, each amended preliminary prospectus, each
final prospectus and each post-effective amendment or supplement
thereto, as the selling holder may reasonably request in order to
facilitate the disposition of the Securities covered by each
registration statement in conformity with the requirements of the
1933 Act;
(vii) use its best efforts to register or qualify the
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United
States and Puerto Rico as each Selling Shareholder shall request
(provided, however, that the Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of
any jurisdiction in which it is not then qualified or to file any
general consent to service of process), and do such other
reasonable acts and things as may be required of it to enable such
Selling Shareholder to consummate the disposition in such
jurisdiction of the Securities covered by such registration
statement;
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(viii) prepare a supplement or post-effective amendment to
each registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of the Securities being sold thereunder, such
prospectus will not contain an untrue statement of a material fact
or omit any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made not misleading;
(ix) furnish, at the request of any Selling Shareholder:
(1) an opinion, dated the date of the closing, of the independent
counsel representing the Company for the purposes of such
registration, addressed to the underwriters and the Selling
Shareholders, or if the Securities are not being sold through
underwriters, then to the Selling Shareholders making such request,
in each case, customary for the type of offering and including
without limitation, that the registration statement, the related
prospectus, and each amendment or supplement thereto, comply as to
form in all material respects with the requirements of the 1933 Act
and the applicable rules and regulations of the SEC thereunder; and
(2) a letter, dated the date of the closing, from the independent
certified public accountants of the Company, addressed to the
underwriters, or if such Securities are not being sold through
underwriters, then to the Company and, if feasible, to the Selling
Shareholders making such request, substantially to the effect that
they are independent certified public accountants within the
meaning of the 1933 Act and that, in the opinion of such
accountants, the financial statements and other financial data of
the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto, comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act. Such opinion of counsel shall
additionally cover such other legal matters with respect to the
registration as the underwriters and the Selling Shareholders may
reasonably request. Such letter from the independent certified
public accountants shall additionally cover such other financial
matters (including information as to the period ending not more
than five (5) business days prior to the date of such letter) with
respect to the registration in respect of which such letter is
being given may reasonably request;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to
its Selling Shareholders, as soon as reasonably practicable, but
not later than 18 months after the effective date of the
registration statement, an earning statement covering the period of
at least 12 months beginning with the first full month after the
effective date of such registration statement, which earning
statements shall satisfy the provisions of Section 11(a) of the
1933 Act; and
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(xi) cause all Securities covered by the registration
statement to be listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed.
4. Additional Terms and Obligations
(a) The obligations of the Company under this Agreement
are subject to the following terms and limitations:
(i) the Company shall be entitled to postpone for up to
three months in any 12-month period the filing of any registration
statement otherwise required to be prepared and filed by it
hereunder if, at the time it receives a request for such
registration, its Board of Directors determines, in its reasonable
good faith judgment (evidenced by a two-thirds vote of the
directors of the Company then in office), that such registration
and sale would materially interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving the Company then under consideration;
(ii) the Company shall not be required to effect the
registration of (i) any Securities received by the Shareholders
other than pursuant to the Stock Purchase Agreement or upon the
conversion of the Convertible Debentures received by such
Shareholder pursuant to the Stock Purchase Agreement or (ii)
subject to Section 5 hereof, any Securities for which registration
rights have been exercised pursuant to Section 1;
(iii) in the event of a request for registration under
Section 1 hereof, sales shall be made through a nationally
recognized investment banking firm selected by the Company which
shall act as managing underwriter;
(iv) the Company shall pay all fees and expenses
associated with the registration and offering of shares pursuant
to this Agreement, including, without limitation, (i) all
registration and filing fees, (ii) fees and expenses of compliance
with federal or state securities or blue sky laws, (iii) printing
expenses (including, without limitation, expenses of printing of
prospectuses if the printing of prospectuses is requested by the
holders of a majority of the Securities included in any
registration statement), (iv) fees and disbursements of counsel for
the Company and (v) fees and disbursements of all independent
certified public accountants of the Company and all other persons
retained by the Company in connection with the registration
statement, except that the Company shall not be obligated to pay
any underwriting fees, commissions or expenses, including, without
limitation, the fees and expenses of counsel for underwriters,
applicable to the registration or offering of any Securities
pursuant to a registration statement provided for in this
Agreement, which fees, commissions and expenses shall be borne by
the Selling Shareholders; provided, however, that in the event of a
registration under Section 1 hereof, the Company shall not be
obligated to pay the costs related to the preparation of any
audited financial statements included in any registration statement
required to be prepared and filed by it pursuant to Section 1
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hereof as of any date other than June 30 (or the end of its
fiscal year, if other than June 30). Or for any audited or
unaudited financial statements for any period of less than
12 months or ending on any date other than June 30 (or the
end of its fiscal year, if other than June 30), or for any
audited or unaudited financial statements for any period of
less than 12 months or ending on any date other than June 30
(or the end of its fiscal year, if other than June 30);
(v) the Company shall not be obligated to provide more
than four registrations pursuant to Section 1 hereof or more than
two registrations pursuant to Section 2 hereof; provided, that in
the event any shares are excluded in an initial registration
pursuant to Section 2 or in the event such registration is
withdrawn or abandoned by the Company, the Shareholders, subject to
Section 5 hereof, shall have additional registration rights
pursuant to such section until such time as the shares originally
proposed to be registered thereunder have been registered pursuant
to this Section each prospectus included in a registration
statement filed pursuant to Section 1 shall be deemed to constitute
a separate demand;
(vi) the Company, the Selling Shareholders and any
underwriter of an offering pursuant to any registration statement
provided for in this Section shall have entered into an
underwriting agreement which shall contain customary terms and
conditions for such transactions including indemnification of the
aforementioned parties in connection with the preparation and use
of such registration statement and shall be in form and substance
satisfactory to the Company and such underwriter;
(vii) it shall be a condition precedent to the
obligations of the Company under this Agreement that the Selling
Shareholders shall furnish to the Company such information
regarding the Selling Shareholders, the Securities proposed to be
sold and the intended method of disposition of such Securities as
the Company shall reasonably request;
(viii) the registration rights provided herein may not be
assigned, directly or indirectly, by operation of law or otherwise,
to any other person, except that Tabacalera and Folium may transfer
their rights to demand registration under Sections 1(a) and (b) and
their piggyback registration rights under Section 2 of this
Agreement with respect to Convertible Debentures and Common Stock
issuable upon conversion of Convertible Debentures, provided,
however, that no more than one holder of record may be assigned the
right to require any single demand registration to which Tabacalera
or Folium may be entitled under Section 1(a) or (b). The Company
shall have no obligations under this Agreement with respect to any
such transferee until it shall have received 10 business days
written notice of such transfer. Any such transferee shall be
bound by the provisions of this Agreement as though such transferee
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were a signatory hereto and, as a condition to affording the
benefits of this Agreement to such transferee, the Company may
require the transferee to execute a counterpart hereof; and
(ix) If, pursuant to Section 1(d) or Section 4(a)(i),
the Company has failed to file a registration statement for a
period of 90 consecutive days or more, then, in each such
instance, the Registration Period shall be extended by an equal
number of days, provided that in the event of such a failure to
file occurring after December 31, 2000 for any number of days,
the expiration of the Registration Period shall be tolled by an
equal number of days.
5. Withdrawal. Any Shareholder participating in a registration
pursuant to this Agreement shall be permitted to withdraw all or part of
its Securities from such registration at any time prior to the effective
date of the registration statement covering such Securities; provided,
that, in the event of a withdrawal from a registration effected pursuant
to Section 1, such registration shall be deemed to have been effected for
purposes of Section 1 unless (i) the participating Shareholders shall
have paid or reimbursed the Company for all out-of-pocket fees and
expenses paid by the Company hereunder or (ii) Tabacalera or Folium, as
the case may be, elect to terminate such registration due to the
occurrence of a Material Adverse Change (as hereinafter defined);
provided, however, that during the term of this Agreement only one such
withdrawal under clause (i) shall be permitted pursuant to the preceding
proviso. "Material Adverse Change" means (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market in the United
States of America, (ii) the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States of
America, (iii) the commencement of a war, armed hostilities or other
international or national calamity involving the United States of
America, (iv) any limitation (whether or not mandatory) by any
governmental authority on, or any other event which materially affects
the extension of credit by banks or other financial institutions, (v) any
material adverse change in the Company's business, condition (financial
or otherwise) or prospects or (vi) a 20% or more decline in the Dow Xxxxx
Industrial average or the Standard and Poor's Index of 400 Industrial
Companies, in each case from the date a Notice of Demand is made.
6. Underwriting Requirements. In connection with any offering
involving an underwriting of Securities being issued by the Company under
Section 2, the Company shall not be required to include any of the
Securities in such underwriting unless the Selling Shareholders
participating in such offering accept the terms of the underwriting as
agreed upon between the Company and the underwriters.
7. Delay of Registration. No Shareholder shall have any right
to take any action to restrain, enjoin or otherwise delay any
registration as the result of any controversy that might arise with
respect to the interpretation or implementation of these registration
rights.
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8. Indemnification. In the event any Securities are included
in a registration statement filed pursuant to Section 1 or Section 2 of
this Agreement:
(a) to the extent permitted by law, the Company will
indemnify and hold harmless each Shareholder requesting or joining in a
registration, any underwriter (as defined in the 0000 Xxx) for it and
each person, if any, who controls such holder or underwriter within the
meaning of the 1933 Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based on
any untrue or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements
thereto, or arise out of or are based upon the 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 arise out
of any violation by the Company of any rule or regulation promulgated
under the 1933 Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration; and will reimburse each such holder, such underwriter or
controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 8(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company nor shall
the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in connection with such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
holder, underwriter or controlling person;
(b) to the extent permitted by law, each Shareholder
requesting or joining in a registration will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed
the registration statement, each person, if any, who controls the Company
within the meaning of the 1933 Act and each agent and any underwriter for
the Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, controlling person, agent or underwriter may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a fact required to be stated therein or
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necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such
registration statement, preliminary or final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with information
furnished by such holder expressly for use in connection with such
registration; and each such holder will reimburse any legal or other
expenses incurred by the Company or any such director, officer,
controlling person, agent or underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section 8(b)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of such holder; and
(c) promptly after receipt by an indemnified party under
this paragraph of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this paragraph, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
paragraph, but the omission so to notify the indemnifying party will not
relieve him of any liability that he may have to any indemnified party
otherwise than under this paragraph.
9. Lockup Agreement. In consideration for the Company agreeing
to its obligations under this Agreement, the Shareholders agree in
connection with any registration of the Company's securities that, upon
the request of the Company or the underwriters managing any underwritten
offering of the Company's securities, not to sell, make any short sale
of, loan, grant any option for the purchase of or otherwise dispose of
any Securities (other than those included in the registration) without
the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 180 days) from the
consummation of the sale of such shares as the Company or the
underwriters may specify. The Company agrees not to effect any public
sale or distribution of its equity securities or securities convertible
into or exchangeable or exercisable for any such securities during the
ten days before, or, if required by the underwriters in connection with
such registration, during a period of up to 90 days after, any
underwritten registration pursuant to Section 1 or 2 has become
effective, except as part of such underwritten registration and except
pursuant to registrations on Form S-4 or S-8, or any successor or similar
forms thereto or otherwise pursuant to a dividend reinvestment plan or
stock purchase plan.
10. Amendments and Waivers. This Agreement may be amended,
supplemented or modified at any time; provided that each of the
Shareholders and the Company has provided its written consent to such
amendment, supplement or modification. Any term or condition of this
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Agreement may be waived at any time by the party that is entitled to the
benefit thereof, but no such waiver shall be effective unless set forth
in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same term or condition of
this Agreement on any future occasion.
11. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the
subject matter hereof and contains the sole and entire agreement between
the parties hereto with respect to the subject matter hereof.
12. Nominees for Beneficial Owners. In the event that any
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder
of such Securities for purposes of request or other action by any
Shareholder pursuant to this Agreement or any determination of any amount
of shares of Shares or Convertible Debentures held by any Shareholder or
contemplated by this Agreement. If the beneficial owner of any
Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such
Securities. For purposes of this Agreement, "beneficial ownership" and
"beneficial owner" refer to beneficial ownership as defined in Rule 13d-3
without regard to the 60-day provision in paragraph (d)(1)(i) thereof)
under the 1934 Act.
13. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given
only if 21 delivered personally, 22 by facsimile transmission, 23 by
electronic mail at the electronic addresses, if any, provided below, 24
by DHL, PS Next Day Air or other internationally recognized courier
service or 25 mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to the Company, to:
DIMON Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Xx.
with a copy to:
Hunton & Xxxxxxxx
000 X. Xxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
- 174 -
If to Shareholders, at their respective addresses set
forth on the signature pages hereof with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
14. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for
convenience of reference only and do not define or limit the provisions
hereof or otherwise affect the meaning hereof.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
[signatures appear on following pages]
- 175 -
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
DIMON INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
and Treasurer
SHAREHOLDERS:
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Senior Investment
Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No. (000)000-0000
Attention: Bond and Corporate
Finance Department, T-57
XXXX XXXXXXX LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Senior Investment
Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No. (000)000-0000
Attention: Bond and Corporate
Finance Department, T-57
- 176 -
SHAREHOLDERS:
TABACALERA S.A.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Authorized Agent
Address: Xxxxxx 00
00000 Xxxxxx Xxxxx
Attention: Xxxxxx Xxxxxxx
DeLerin
FOLIUM INC.
By: /s/ P.M. Xxxxxxxxx
Name: P.M. Xxxxxxxxx
Title: Authorized Agent
Address: Maitland & Co.
00 xxx Xx Xxxxxx
Xxxxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
LEAF MANAGEMENT INVESTMENTS LTD.
By: /s/ P.M. Xxxxxxxxx
Name: P.M. Xxxxxxxxx
Title: Authorized Agent
Address: Maitland & Co.
00 xxx Xx Xxxxxx
Xxxxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
- 177 -
