EXHIBIT 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED FEBRUARY 8, 0000
XXXXXXX
XXX XXXXX XXXXXXXXXXX
XXX XXXXX FOODS COMPANY
THE SUBSIDIARY GUARANTORS PARTY HERETO
AND
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into on February 8, 2005, between DEL MONTE CORPORATION, a Delaware
corporation (the "Company"), DEL MONTE FOODS COMPANY, a Delaware corporation
("Holdings") and the subsidiary guarantors party hereto (the "Subsidiary
Guarantors"), on the one hand, and XXXXXX XXXXXXX & CO. INCORPORATED, BANC OF
AMERICA SECURITIES LLC, XXXXXX BROTHERS INC. and X.X. XXXXXX SECURITIES INC.
(the "Placement Agents"), on the other hand.
This Agreement is made pursuant to the Placement Agreement dated
January 25, 2005, among the Company, Holdings and the Placement Agents (the
"Placement Agreement"), which provides for the sale by the Company to the
Placement Agents of an aggregate of $250,000,000 principal amount of the
Company's 6-3/4% Senior Subordinated Notes Due 2015, which will be guaranteed
by Holdings and the Subsidiary Guarantors. In order to induce the Placement
Agents to enter into the Placement Agreement, the Company, Holdings and the
Subsidiary Guarantors have agreed to provide to the Placement Agents and their
respective direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement are a condition to
the closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Additional Notes" shall mean notes, if any, issued under Section
2.18 of the Indenture.
"Closing Date" shall mean the Closing Date as defined in the
Placement Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Dates" shall have the meaning set forth in Section
2(a)(ii).
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
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"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Company
and Holdings under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Securities or, if no such interest
has been paid, from February 8, 2005 and (ii) the Exchange Securities will
not contain restrictions on transfer) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Holder" shall mean the Placement Agents, for so long as they own
any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Securities under the Indenture; provided, however, that for
purposes of Sections 4 and 5 of this Agreement, the term "Holder" shall
include Participating Broker-Dealers (as defined below).
"Holdings" shall have the meaning set forth in the preamble and
shall also include Holdings' successors.
"Indenture" shall mean the Indenture relating to the Securities
dated as of February 8, 2005 among the Company, Holdings, the Subsidiary
Guarantors and Deutsche Bank Trust Company Americas, as trustee, and as
the same may be amended from time to time in accordance with the terms
thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided, that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage or amount.
"Participating Broker-Dealer" shall have the meaning specified in
Section 4(a) hereafter.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization or other
entity, or a government or agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble
to this Agreement and shall also include their respective successors.
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"Placement Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated or deemed by
securities laws to be incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities (i)
when a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) when such
Securities have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the 1933 Act or
(iii) when such Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company, Holdings and the Subsidiary
Guarantors with this Agreement, including, without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of one counsel for any
underwriters or Holders in connection with blue sky qualification of any
of the Exchange Securities or Registrable Securities), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee
and its counsel and of any depositary for book-entry Securities, (vii) the
fees and disbursements of counsel for the Company and Holdings and, in the
case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Placement Agents)
and (viii) the fees and disbursements of the independent public
accountants of the Company and Holdings, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to
the underwriters (other than fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of
the Company, Holdings and the Subsidiary Guarantors that covers any of the
Exchange Securities or
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Registrable Securities pursuant to the provisions of this Agreement and
all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated or
deemed by securities laws to be incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the 6-3/4% Senior Subordinated Notes due
2015 of the Company to be fully and unconditionally guaranteed by Holdings
and the Subsidiary Guarantors.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company, Holdings and the Subsidiary Guarantors pursuant
to the provisions of Section 2(b) of this Agreement which covers all of
the Registrable Securities (but no other securities unless approved by the
Majority Holders whose Registrable Securities are covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated or deemed by
securities laws to be incorporated by reference therein.
"Staff" shall have the meaning set forth in Section 4 hereof.
"Subsidiary Guarantors" shall have the meaning set forth in the
preamble and shall also include each Subsidiary Guarantor's successors.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company, Holdings and the
Subsidiary Guarantors shall use their commercially reasonable efforts to cause
to be filed as promptly as reasonably practicable an Exchange Offer Registration
Statement covering the offer by the Company, Holdings and the Subsidiary
Guarantors to the Holders to exchange all of the Registrable Securities for
Exchange Securities and to have such Exchange Offer Registration Statement
declared effective as promptly as reasonably practicable and remain effective
until the closing of
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the Exchange Offer. The Company, Holdings and the Subsidiary Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use their commercially
reasonable efforts to have the Exchange Offer consummated not later than 60 days
after such effective date. The Company, Holdings and the Subsidiary Guarantors
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the
close of business on the last Exchange Date, provided, however, that, if
any of the Registrable Securities are in book-entry form, such Prospectus
and accompanying documents shall also specify how such surrender is to be
effected in accordance with applicable book-entry procedures; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
As soon as practicable after the last Exchange Date, the Company,
Holdings and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company, Holdings and the Subsidiary Guarantors and
issue, and cause the Trustee to promptly authenticate and mail to each
Holder, an Exchange Security equal in principal amount to the principal
amount of the Registrable Securities surrendered by such Holder.
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The Company, Holdings and the Subsidiary Guarantors shall use their commercially
reasonable efforts to complete the Exchange Offer as provided above and shall
comply with the applicable requirements of the 1933 Act, the 1934 Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the Staff of the SEC. The Company and Holdings shall inform the Placement
Agents of the names and addresses of the Holders to whom the Exchange Offer is
made, and the Placement Agents shall have the right, subject to applicable law,
to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
(b) In the event that (i) the Company and Holdings determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by February 8, 2006 or (iii) the Exchange Offer has
been completed and in the opinion of counsel for the Placement Agents, a copy of
which is forwarded to the Company, a Registration Statement must be filed and a
Prospectus must be delivered by the Placement Agents in connection with any
offering or sale of Registrable Securities, the Company, Holdings and the
Subsidiary Guarantors shall use their commercially reasonable efforts to cause
to be filed as soon as practicable after such determination, date or
notification is given to the Company and Holdings, as the case may be, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC as promptly as reasonably practicable. In the event that
the Company, Holdings and the Subsidiary Guarantors are required to file a Shelf
Registration Statement solely as a result of the matters referred to in clause
(iii) of the preceding sentence, the Company, Holdings and the Subsidiary
Guarantors shall use their commercially reasonable efforts to file and have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Placement Agents after completion of the
Exchange Offer. The Company, Holdings and the Subsidiary Guarantors agree to use
their commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective until the expiration of the period referred to in Rule
144(k) under the 1933 Act with respect to the Registrable Securities or such
shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company, Holdings and the Subsidiary Guarantors
further agree to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company, Holdings and the Subsidiary Guarantors
for such Shelf Registration Statement or by the 1933 Act or by any other rules
and regulations thereunder for shelf registration or if reasonably requested by
a Holder with respect to information relating to such Holder, and to use their
commercially reasonable efforts to cause any such amendment to become effective
and such Shelf Registration Statement to become usable as soon thereafter as is
practicable. The Company and Holdings agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
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(c) The Company and Holdings shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) and Section 2(b).
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume; provided, further,
that if the offering of Registrable Securities pursuant to a Shelf Registration
Statement is interfered with as described in this clause (d) by reason of any
information relating to a Holder furnished to the Company or Holdings in writing
by such Holder expressly for use in such Shelf Registration Statement, then the
provisions of the following sentence shall be inapplicable with respect to such
Holder. In the event the Exchange Offer is not consummated and the Shelf
Registration Statement is not declared effective on or prior to February 8,
2006, the interest rate on the Securities will be increased by 0.5% per annum
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective by the SEC.
(e) Without limiting the remedies available to the Placement
Agents and the Holders, the Company, Holdings and the Subsidiary Guarantors
acknowledge that any failure by the Company, Holdings and the Subsidiary
Guarantors to comply with their respective obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Placement
Agents or the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Placement Agents or any Holder may obtain such
relief as may be required to specifically enforce the obligations of the
Company, Holdings and the Subsidiary Guarantors under Section 2(a) and Section
2(b) hereof.
(f) In the event that the Exchange Offer has been completed but
(i) at any time before or after completion of the Exchange Offer, any Securities
shall have been sold or otherwise transferred pursuant to an effective Shelf
Registration Statement or to the public pursuant to Rule 144 (or any similar
rule then in force, but not Rule 144A) under the 1933 Act and, as a result,
shall have ceased to be Registrable Securities, or (ii) any Securities not
exchanged in the Exchange Offer shall otherwise have ceased to be Registrable
Securities, the Company, Holdings and the Subsidiary Guarantors will make
available to the Holders the opportunity to exchange such Securities for
identical Securities of like tenor and principal amount at maturity but bearing
the same CUSIP number as the Exchange Securities.
3. Registration Procedures.
In connection with the obligations of the Company, Holdings and the
Subsidiary Guarantors with respect to the Registration Statements pursuant to
Section 2(a) and Section 2(b)
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hereof, the Company, Holdings and the Subsidiary Guarantors shall as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and Holdings and (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by
the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and
use their commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; to the extent required, to keep each
Prospectus current during the period described under Section 4(3) and Rule
174 under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Placement Agents, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and the Company, Holdings and
the Subsidiary Guarantors consent to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each
of the selling Holders of Registrable Securities and any such Underwriters
in connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any amendment
or supplement thereto in accordance with applicable law;
(d) use their commercially reasonable efforts to register or
qualify the Registrable Securities under all applicable state securities
or "blue sky" laws of such jurisdictions as may be required in connection
with the Exchange Offer and, in connection with the Shelf Registration, as
any Holder of Registrable Securities covered by a Registration Statement
shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with
such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that
none of the Company, Holdings or the Subsidiary Guarantors shall be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it
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would not otherwise be required to qualify but for this Section 3(d), (ii)
file any general consent to service of process, or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Placement Agents promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company, Holdings or the Subsidiary Guarantors contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct
in all material respects or if the Company, Holdings or the Subsidiary
Guarantors receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction
or the initiation of any proceeding for such purpose, (v) of the happening
of any event during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in
order to make the statements therein not misleading and (vi) of any
determination by the Company or Holdings that a post-effective amendment
to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest practicable date and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and enable
such Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the
selling Holders may reasonably request at least one business day prior to
the closing of any sale of Registrable Securities;
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(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use their commercially
reasonable efforts to prepare and file with the SEC as promptly as
reasonably practicable a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company and Holdings agree to notify the Holders
to suspend use of the Prospectus as promptly as reasonably practicable
after the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until the Company and Holdings have amended
or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated or deemed by securities laws to be incorporated by reference
into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Placement
Agents and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and one counsel to be chosen by the Majority
Holders) and make such of the representatives of the Company and Holdings
as shall be reasonably requested by the Placement Agents or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or their
chosen counsel as provided above in this paragraph) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment
of or supplement to a Registration Statement or a Prospectus or any
document which is to be incorporated or deemed by securities laws to be
incorporated by reference into a Registration Statement or a Prospectus,
of which the Placement Agents and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their chosen counsel as
provided above in this paragraph) shall not have previously been advised
and furnished a copy or to which the Placement Agents or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or their
chosen counsel as provided above in this paragraph) shall reasonably
object;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective
date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Securities or Registrable Securities, as the case may be,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use their reasonable
best efforts to cause the Trustee to execute, all documents as may be
required to effect
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such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities designated by the Majority Holders, any Underwriter
participating in any Underwritten Offering pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Majority Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the
Company, Holdings and the Subsidiary Guarantors , and cause the respective
officers, directors and employees of the Company and Holdings to supply
all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(n) in the case of a Shelf Registration, use their commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(o) use their commercially reasonable efforts to cause the
Exchange Securities or Registrable Securities, as the case may be, to be
rated by two nationally recognized statistical rating organizations (as
such term is defined in Rule 436(g)(2) under the 0000 Xxx);
(p) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) as promptly as
reasonably practicable incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as
such Holder reasonably requests to be included therein, and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as promptly as reasonably practicable after the Company and
Holdings have received notification of the matters to be incorporated in
such filing; and
(q) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority of the aggregate
principal amount of the Registrable Securities being sold) as may
reasonably be requested in order to expedite or facilitate the disposition
of such Registrable Securities, including, but not limited to, pursuant to
an Underwritten Offering and in such connection, (i) to the extent
reasonably practicable, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries and Holdings and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company and Holdings
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to a representative designated by the Majority
11
Holders and such Underwriters and their respective counsel) addressed to
each selling Holder and Underwriter of Registrable Securities, covering
the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain "cold comfort" letters from the independent
certified public accountants of the Company and Holdings (and, if
necessary, any other certified public accountant of any subsidiary of the
Company or Holdings, or of any business acquired by the Company or
Holdings for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each
selling Holder and Underwriter of Registrable Securities, such letters to
be in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company, Holdings
and the Subsidiary Guarantors made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company and
Holdings may require each Holder of Registrable Securities to furnish to the
Company and Holdings such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company and
Holdings may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company, Holdings and the Subsidiary
Guarantors of the happening of any event of the kind described in Section
3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Company and Holdings, such
Holder will deliver to the Company and Holdings (at its expense) all copies in
its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If the Company and Holdings shall give any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company and Holdings shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and Holdings may give any such notice only twice
during any 365 day period and any such suspensions may not exceed 30 days for
each suspension and there may not be more than two suspensions in effect during
any 365 day period.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or
12
managers (the "Underwriters") that will administer the offering will be selected
by the Majority Holders of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The staff of the SEC (the "Staff") has taken the position that
any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Company, Holdings and the Subsidiary Guarantors understand that
it is the Staff's position that if the Prospectus contained in the Exchange
Offer Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Securities
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company, Holdings and the Subsidiary Guarantors agree that
the provisions of this Agreement as they relate to a Shelf Registration shall
also apply to an Exchange Offer Registration to the extent, and with such
reasonable modifications thereto as may be, reasonably requested by the
Placement Agents or by one or more Participating Broker-Dealers, in each case as
provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided that:
(i) the Company, Holdings and the Subsidiary Guarantors shall not
be required to amend or supplement the Prospectus contained in the
Exchange Offer Registration Statement, as would otherwise be contemplated
by Section 3(i), for a period exceeding 180 days after the last Exchange
Date (as such period may be extended pursuant to the penultimate paragraph
of Section 3 of this Agreement) and Participating Broker-Dealers shall not
be authorized by the Company, Holdings or the Subsidiary Guarantors to
deliver and shall not deliver such Prospectus after such period in
connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Company, Holdings and the Subsidiary
Guarantors by the Placement Agents or with the reasonable request in
writing to the Company, Holdings and the Subsidiary Guarantors by one or
more broker-dealers who certify to the Placement Agents, on the one hand,
and the Company, Holdings and
13
the Subsidiary Guarantors, on the other hand, in writing that they
anticipate that they will be Participating Broker-Dealers; and, provided
further, that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Company, Holdings and the Subsidiary Guarantors shall be
obligated (x) to deal only with one entity representing the Participating
Broker-Dealers, which shall be Xxxxxx Xxxxxxx & Co. Incorporated unless it
elects not to act as such representative, in which case it shall be
designated by Participating Broker-Dealers holding a majority in principal
amount of all Securities held by Participating Broker-Dealers, (y) to pay
the fees and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Placement Agents unless such
counsel elects not to so act, and (z) to cause to be delivered only one,
if any, "cold comfort" letter with respect to the Prospectus in the form
existing on the last Exchange Date and with respect to each subsequent
amendment or supplement, if any, effected during the period specified in
clause (i) above.
(c) The Placement Agents shall have no liability to the Company,
Holdings the Subsidiary Guarantors or any Holder with respect to any request
that it may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company, Holdings and the Subsidiary Guarantors, jointly
and severally, agree to indemnify and hold harmless the Placement Agents, each
Holder, each Person, if any, who controls any Placement Agent or any Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, or is under common control with, or is controlled by, any Placement
Agent or any Holder, from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Placement Agent, any Holder or any such controlling
or affiliated Person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Exchange Securities or Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by reference,
or caused by 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 caused by any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (as amended or supplemented if the
Company, Holdings or the Subsidiary Guarantors shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Placement Agents or any Holder furnished to the
Company, Holdings and the Subsidiary Guarantors in writing by Xxxxxx Xxxxxxx &
Co. Incorporated or any selling Holder expressly for use therein; provided,
however, that with respect to any untrue statement or omission of material fact
made in any preliminary Prospectus, the indemnity contained in this Section 5(a)
shall not inure to the benefit of any Holder from whom
14
the Person asserting any such loss, claim, damage or liability purchased the
securities concerned, or any Person controlling such Holder, to the extent that
any such loss, claim, damage or liability of such Holder occurs under the
circumstances where it shall have been determined by a court of competent
jurisdiction by final and nonapplicable judgment that (i) the Company had
previously furnished copies of the final Prospectus to such Holder, (ii)
delivery of the final Prospectus was required by the 1933 Act to be made to such
Person, (iii) the untrue statement or omission of a material fact contained in
the preliminary Prospectus was corrected in the final Prospectus, and (iv) there
was not sent or given to such Person, at or prior to the written confirmation of
the sale of such securities to such Person, a copy of the final Prospectus. In
connection with any Underwritten Offering permitted by Section 3, the Company,
Holdings and the Subsidiary Guarantors, jointly and severally, will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the 1933 Act and the 0000 Xxx) to the same extent as provided above
with respect to the indemnification of the Holders, if requested in connection
with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, Holdings, the Subsidiary Guarantors, the
Placement Agents and the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each Person, if any,
who controls the Company, Holdings, the Subsidiary Guarantors, any Placement
Agent and any other selling Holder within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company, Holdings and the Subsidiary Guarantors to the
Placement Agents and the Holders, but only with reference to information
relating to such Holder furnished to the Company and Holdings in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
The indemnifying party may assume at its sole expense the defense of any such
litigation or proceeding; such defense shall be conducted by counsel reasonably
satisfactory to such indemnified party and the indemnifying party shall pay the
fees and disbursements of such counsel related to such proceeding.
Notwithstanding the foregoing, in any such proceeding, any indemnified party
shall have the right to retain its own counsel and assume its own defense in
such proceeding, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between
15
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
(a) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Placement Agents and all Persons, if any, who control any
Placement Agent within the meaning of either Section 15 of the 1933 Act or
Xxxxxxx 00 xx xxx 0000 Xxx, (x) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, Holdings and the
Subsidiary Guarantors and their respective directors, their respective officers
who sign the Registration Statement and each Person, if any, who controls the
Company, Holdings or the Subsidiary Guarantors within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agents and Persons who control the Placement Agents,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
In such case involving the Holders and such Persons who control Holders, such
firm shall be designated in writing by the Majority Holders. In all other cases,
such firm shall be designated by the Company and Holdings. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party for such fees
and expenses of counsel in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company, Holdings and the Subsidiary Guarantors, on the one hand, and the
Holders, on the other hand, 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
16
the Company, Holdings and the Subsidiary Guarantors, on the one hand, or by the
Holders, on the other hand, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this Section 5(d)
are several in proportion to the respective principal amount of Registrable
Securities of such Holder that were registered pursuant to a Registration
Statement.
(e) The Company, Holdings and the Subsidiary Guarantors, on the
one hand, and each Holder, on the other hand, agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Placement Agent, any Holder, any Person controlling any Placement Agent or
any Holder, or by or on behalf of the Company or Holdings, or their respective
officers or directors or any Person controlling the Company or Holdings, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company, Holdings and the
Subsidiary Guarantors, jointly and severally, represent, warrant and agree that
none of the Company, Holdings or the Subsidiary Guarantors has entered into, and
on or after the date of this Agreement will not enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The
Company, Holdings and the Subsidiary Guarantors, jointly and severally,
represent, warrant and agree that the rights granted to the Holders hereunder do
not and will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of the Company's, Holdings'
or the Subsidiary Guarantors' other issued and outstanding securities under any
such agreements.
17
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company and Holdings have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to any departure from the provisions
of Section 5 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company or Holdings by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Placement Agents, the address set forth in the Placement Agreement; and (ii) if
to the Company, Holdings or the Subsidiary Guarantors, initially at the
respective addresses set forth in the Placement Agreement and thereafter at such
other addresses, notice of which is given in accordance with the provisions of
this Section 6(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Placement Agreement. If
any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
The Placement Agents (in their capacity as Placement Agents) shall have no
liability or obligation to the Company or Holdings with respect to any failure
by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. Neither the Company nor
Holdings shall, and the Company and Holdings shall each use its commercially
reasonable efforts to cause
18
its respective affiliates (as defined in Rule 405 under the 0000 Xxx) not to,
purchase and then resell or otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, Holdings and
the Subsidiary Guarantors, on the one hand, and the Placement Agents, on the
other hand, and any Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
DEL MONTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
DEL MONTE FOODS COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
THE SUBSIDIARY GUARANTORS:
XXXX MAC IHC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
STAR-XXXX SAMOA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
MARINE TRADING PACIFIC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
20
STAR-XXXX MAURITIUS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
and Treasurer
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Executive Directors
21
