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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 1, 1996, by and among International Home Foods,
Inc., a Delaware corporation (the "Company"), AHP Subsidiary Holding
Corporation, a Delaware corporation ("Seller"), and AHFP Holding Corporation, a
Delaware corporation ("Buyer").
RECITALS:
A. Seller, American Home Products Corporation, a Delaware
corporation, the Company (previously named "American Home Food Products,
Inc."), Buyer and AHFP Acquisition Corporation, a Delaware corporation ("Merger
Sub"), entered into that certain Agreement of Sale and Plan of Merger dated as
of September 5, 1996 (the "Merger Agreement").
B. Pursuant to the Merger Agreement, (i) Merger Sub has been
merged with and into the Company (the "Merger"), with the Company continuing as
the surviving corporation in the Merger, (ii) as a result of the Merger, Buyer
is the owner of 264,000,000 shares of the Company's common stock, no par value
("Common Stock"), and (iii) as a result of the Merger and a stock redemption
made by the Company pursuant to the Merger Agreement, Seller is the owner of
66,000,000 shares of Common Stock.
C. It is contemplated under the Merger Agreement that the Company
grant certain registration rights to Seller and Buyer in respect of the shares
of Common Stock held by them and agree to certain other matters set forth
herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions.
"Advice" shall have the meaning provided in Section 2.5 hereof.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly through stock ownership or through other arrangements
either controls, is controlled by or is under common control with such Person;
provided, however, that for purposes of this Agreement the term "Affiliate"
shall not include subsidiaries or other entities in which a Person owns a
majority of the ordinary voting power to elect a majority of the board of
directors or other governing board but is restricted from electing such
majority by contract or otherwise, until such time as such restrictions are no
longer in effect.
"Agreement" means this Registration Rights Agreement.
"Business Day" means a day other than Saturday, Sunday, or any day on
which the principal commercial banks located in New York City, New York are
authorized or obligated to close under applicable Federal or State law.
"Buyer Group Demand Holders" means Buyer and each other Holder who is
a transferee of Registrable Shares directly or indirectly (in a chain of title)
from Buyer to whom the right to cause one or more
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Demand Registrations under Section 2.1 has been expressly assigned in writing
directly or indirectly (in a chain of title) from Buyer.
"Buyer Group Piggyback Holder" means Buyer and each other Holder who
is a transferee of Registrable Shares directly or indirectly (in a chain of
title) from Buyer.
"Buyer" shall have the meaning set forth in the introductory paragraph
hereof.
"Common Stock" means shares of the Common Stock, par value $.01 per
share, of the Company, and any capital stock into which such Common Stock
hereafter may be changed.
"Common Stock Equivalents" means any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock of the Company and securities
convertible or exchangeable into Common Stock of the Company, whether at the
time of issuance or upon the passage of time or the occurrence of some future
event.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Demand Holder" means any Seller Group Demand Holder or Buyer Group
Demand Holder.
"Demand Registration" shall have the meaning set forth in Section
2.1.1 hereof.
"Demand Request" shall have the meaning set forth in Section 2.1.1.
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Excluded Registration" means a registration under the Securities Act
of (i) securities registered on Form S-8 or any similar successor form and (ii)
securities registered to effect the acquisition of or combination with another
Person.
"Holders" means the Seller and the Buyer and shall include any direct
or indirect transferee of any such Holder who shall become a party to this
Agreement.
"Inspectors" shall have the meaning provided in Section 2.4 hereof.
"Material Adverse Effect" shall have the meaning provided in Section
2.1.4 hereof.
"Merger" shall have the meaning set forth in the Recitals hereto.
"Merger Agreement" shall have the meaning set forth in the Recitals
hereto.
"Merger Sub" shall have the meaning set forth in the Recitals hereto.
"NASD" shall have the meaning provided in Section 2.4 hereof.
"NASDAQ" shall have the meaning provided in Section 2.4 hereof.
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"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Piggyback Holder" means any Seller Group Piggyback Holder or Buyer
Group Piggyback Holder.
"Piggyback Registration" shall have the meaning set forth in Section
2.2.1.
"Piggyback Request" shall have the meaning set forth in Section 2.2.1.
"Piggyback Securities" shall have the meaning set forth in Section
2.2.1.
"Qualified IPO" means a firm commitment underwritten public offering
of Common Stock or Common Stock Equivalents for cash pursuant to a registration
statement under the Securities Act where the aggregate proceeds to the Company
prior to deducting any underwriters' discounts and commissions from such
offering and any similar prior public offerings exceed $10 million.
"Records" shall have the meaning provided in Section 2.4 hereof.
"Registrable Shares" means at any time the Common Stock of the Company
owned by a Holder, whether owned on the date hereof or acquired hereafter;
provided, however, that Registrable Shares shall not include any shares (x) the
sale of which has been registered pursuant to the Securities Act and which
shares have been sold pursuant to such registration, or (y) which have been
sold to the public pursuant to Rule 144 of the SEC under the Securities Act.
"Registration Expenses" shall have the meaning provided in Section 2.6
hereof.
"Registration Statement" means the registration statement of the
Company on the appropriate form under the Securities Act that covers any of the
Registrable Shares pursuant to the provisions of this Agreement, including the
Prospectus included therein, all amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such registration statement.
"Requesting Holder" shall have the meaning provided in Section
2.1.1(b) hereof.
"Required Filing Date" shall have the meaning provided in Section
2.1.1(d) hereof.
"Required Holders" means Holders who then own beneficially more than
95% of the aggregate number of Registrable Shares.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Seller" shall have the meaning set forth in the introductory
paragraph hereof.
"Seller Affiliates" shall have the meaning provided in Section 2.7.1
hereof.
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"Seller Group Demand Holders" means Seller and each other Holder who
is a transferee of Registrable Shares directly or indirectly (in a chain of
title) from Seller to whom the right to cause one or more Demand Registrations
under Section 2.1 has been expressly assigned in writing directly or indirectly
(in a chain of title) from Seller.
"Seller Group Piggyback Holder" means Seller and each other Holder who
is a transferee of Registrable Shares directly or indirectly (in a chain of
title) from Seller.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting
power, under ordinary circumstances to elect directors, is at the time,
directly or indirectly, owned by such Person, by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person, and
(ii) any other Person (other than a corporation) in which such Person, a
subsidiary of such Person or such Person and one or more subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, has (x)
at least a majority ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"Suspension Notice" shall have the meaning provided in Section 2.5
hereof.
Section 1.2 Rules of Construction. Unless the context otherwise
requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words
in the plural include the singular;
(4) provisions apply to successive events and
transactions; and
(5) "herein," "thereof" and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.1 Demand Registration.
2.1.1 Request for Registration.
(a) Subject to the terms set forth in this Agreement, at
any time commencing on the date which is six months after a Qualified
IPO, each Demand Holder may make a written request (each a "Demand
Request") for registration under the Securities Act (a "Demand
Registration") of all or part of the Registrable Shares held by such
Demand Holder; provided, however, that the Registrable Shares
requested to be registered (i) shall constitute at least 5% of the
shares of the Company's Common Stock outstanding on the date that the
Demand Request is delivered, or (ii) shall have an aggregate gross
offering price of at least $20,000,000. The Company shall not be
required to effect more than three Demand Registrations requested by
Buyer Group Demand Holders and no more than three Demand Registrations
requested by Seller Group Demand Holders; provided, however, that if
the number of Registrable Shares held by Seller Group Demand Holders
included in any Demand Registration effected at the request of the
Seller Group Demand Holders is reduced because of a
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Piggyback Request by 25% or more of the number of such Registrable
Shares originally specified in the Demand Request delivered in
connection with such Demand Registration, the Company, if requested by
such Seller Group Demand Holders, shall be obligated to effect one
additional Demand Registration.
(b) Within ten days after receipt of each Demand Request,
the Company shall give written notice of such Demand Request to all
non-requesting Demand Holders who are Buyer Group Demand Holders or
Seller Group Demand Holders, as applicable, on whose behalf such
Demand Request was made and shall, subject to the provisions of the
following paragraph, include in such registration all Registrable
Shares with respect to which the Company receives written request for
inclusion therein within 15 days after the receipt of the notice of
such Demand Request. Both the Demand Request and any request to join
in such Demand Request shall be considered as a single Demand Request
and shall specify the number of Registrable Shares proposed to be sold
and also the intended method of disposition thereof. Any inclusion of
Registrable Shares owned by a Demand Holder pursuant to a Demand
Request (including a notice to join in a prior Demand Request) shall
be deemed to have been effected pursuant to a single Demand
Registration. All Holders requesting to have their Registrable Shares
included in a Demand Registration shall be deemed "Requesting
Holders."
(c) Also, within ten days after receipt of each Demand
Request, the Company shall give written notice of such Demand Request
to all Piggyback Holders who are not Buyer Group Demand Holders or
Seller Group Demand Holders, as applicable, on whose behalf such
Demand Request was made and shall, subject to the provisions of
Section 2.1.4, include in such registration all Registrable Shares
held by such Piggyback Holders with respect to which the Company
receives from such Piggyback Holders, written requests for inclusion
therein within 15 days after the receipt of the notice of such Demand
Request. Any inclusion of Registrable Shares owned by Piggyback
Holders in a Demand Registration shall be deemed to have been effected
pursuant to a Piggyback Registration by such holders and not by means
of a Demand Registration.
(d) Each Demand Request shall specify the number of
Registrable Shares proposed to be sold. Subject to Section 2.1.6, the
Company shall file the Demand Registration within 90 days after
receiving a Demand Request (the "Required Filing Date") and shall use
all commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing.
(e) Notwithstanding any other provision set forth in this
Section 2.1.1, no Demand Holder shall be entitled to deliver a Demand
Request within 90 days after the effective date of any Registration
Statement filed by the Company for an Underwritten Offering of Common
Stock or other equity securities of the Company made by the Company or
on behalf of any Demand Holder or any other holder of demand
registration rights.
2.1.2 Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case
such demand will count as a Demand Registration unless the Requesting Holders
pay all Registration Expenses in connection with such withdrawn registration);
provided, that if, after it has become effective, an offering of Registrable
Shares pursuant to a registration is interfered with by any stop order,
injunction, or other order or requirement of the SEC or other governmental
agency or court, such registration will be deemed not to have been effected and
will not count as a Demand Registration.
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2.1.3 Selection of Underwriters. The offering of Registrable Shares
pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holders of a majority of the Registrable
Shares to be registered in a Demand Registration shall select the investment
banking firm or firms to manage the underwritten offering; provided that such
selection shall be subject to the consent of the Company, which consent shall
not be unreasonably withheld.
2.1.4 Priority on Demand Registrations. If the managing underwriter
or underwriters of a Demand Registration advise the Company in writing that in
their opinion the number of shares of Registrable Shares requested to be
included in a registration under this Section 2.1 is sufficiently large to have
a material adverse effect on the offering price or the success of such offering
(a "Material Adverse Effect"), the Company will include in such registration
the aggregate number of Registrable Shares which in the opinion of such
managing underwriter or underwriters can be sold without resulting in any such
Material Adverse Effect, and the Registrable Shares to be included in such
registration shall be allocated, (i) first to the Demand Holders making such
Demand Request and any Piggyback Holder(s) whose Registrable Shares are to be
included in such registration, pro rata, on the basis of the number of
Registrable Shares proposed to be included in such registration by such
holders, and (ii) second among the Company and any other holders of
registration rights in respect of securities of the Company in accordance with
the terms of the agreements granting such rights.
2.1.5 Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 2.1 until a
date not later than 90 days after the Required Filing Date if (i) at the time
the Company receives the Demand Request, the Company or any of its Subsidiaries
are engaged in confidential negotiations or other confidential business
activities, disclosure of which would be required in such registration
statement (but would not be required if such registration statement were not
filed), and the Board of Directors of the Company determines in good faith that
such disclosure would be materially detrimental to the Company and its
stockholders or would have a material adverse effect on any such confidential
negotiations or other confidential business activities, or (ii) prior to
receiving the Demand Request, the Board of Directors had determined to effect a
registered underwritten public offering of the Company's Common Stock or Common
Stock Equivalents for the Company's account and the Company had taken
substantial steps (including, but not limited to, selecting a managing
underwriter for such offering) and is proceeding with reasonable diligence to
effect such offering. A deferral of the filing of a registration statement
pursuant to this Section 2.1.5 shall be lifted, and the requested registration
statement shall be filed forthwith, if, in the case of a deferral pursuant to
clause (i) of the preceding sentence, the negotiations or other activities are
disclosed or terminated, or, in the case of a deferral pursuant to clause (ii)
of the preceding sentence, the proposed registration for the Company's account
is abandoned. In order to defer the filing of a registration statement
pursuant to this Section 2.1.5, the Company shall promptly (but in any event
within 10 days), upon determining to seek such deferral, deliver to each
Requesting Holder a certificate signed by an executive officer of the Company
stating that the Company is deferring such filing pursuant to this Section
2.1.5 and a general statement of the reason for such deferral and an
approximation of the anticipated delay. Within 20 days after receiving such
certificate, the holders of a majority of the Registrable Shares held by the
Requesting Holders and for which registration was previously requested may
withdraw such Demand Request by giving notice to the Company; if withdrawn, the
Demand Request shall be deemed not to have been made for all purposes of this
Agreement. The Company may defer the filing of a particular registration
statement pursuant to this Section 2.1.5 only once.
Section 2.2 Piggyback Registrations.
2.2.1 Right to Piggyback. At any time prior to the tenth
anniversary of the date of this Agreement, if the Company proposes to file a
registration statement under the Securities Act with respect to any offering of
Common Stock (including a proposed Qualified IPO) by the Company for its own
account or for the account of any of its security holders (other than an
Excluded Registration), then the Company shall give written notice
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of such proposed filing to the Piggyback Holders as soon as practicable (but in
no event less than, in the case of a Demand Registration, 10 days after receipt
of a Demand Request, and in all other cases forty-five days before the
anticipated filing date), and such notice shall offer such Piggyback Holders
the opportunity to register such number of Registrable Shares as each such
holder may request (a "Piggyback Registration"). If any Seller Group Piggyback
Holder(s) or any Buyer Group Piggyback Holder(s) desire(s) to effect a
Piggyback Registration, Seller, on behalf of such Seller Group Piggyback
Holder(s), and Buyer, on behalf of such Buyer Group Piggyback Holder(s), may
deliver a request to the Company in writing (a "Piggyback Request") within 15
days after the date of receipt of the notice from the Company (which Piggyback
Request shall set forth the number of Registrable Shares for which registration
is requested). Any Piggyback Holder shall have the right to withdraw such
Piggyback Holder's request for inclusion of such Piggyback Holder's Registrable
Shares in any registration statement pursuant to this Section 2.2.1 by giving
written notice to the Company of such withdrawal. Subject to Section 2.2.2,
the Company shall include in such registration statement all such Registrable
Shares held by Piggyback Holders so requested to be included therein
("Piggyback Securities"); provided, however, that the Company may at any time
withdraw or cease proceeding with any such registration if it shall at the same
time withdraw or cease proceeding with the registration of all other equity
securities originally proposed to be registered.
2.2.2 Priority on Registrations. If the Piggyback Securities
requested to be included in the registration statement by any Holder differ
from the type of securities proposed to be registered by the Company and the
managing underwriter advises the Company that due to such differences the
inclusion of such Piggyback Securities would cause a Material Adverse Effect,
then (i) the number of such Piggyback Holder's or Piggyback Holders' Piggyback
Securities to be included in the registration statement shall be reduced to an
amount which, in the judgment of the managing underwriter, would eliminate such
Material Adverse Effect or (ii) if no such reduction would, in the judgment of
the managing underwriter, eliminate such Material Adverse Effect, then the
Company shall have the right to exclude all such Piggyback Securities from such
registration statement provided no other securities of such type are included
and offered for the account of any other Person in such registration statement.
Any partial reduction in number of Piggyback Securities to be included in the
registration statement pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Piggyback
Holder's requested shares bears to the total number of like securities
requested to be included in such registration statement by all Persons who have
requested that their like securities be included in such registration
statement. If the Piggyback Securities requested to be included in the
registration statement are of the same type as the securities being registered
by the Company and the managing underwriter advises the Company that the
inclusion of such Piggyback Securities would cause a Material Adverse Effect,
then the amount of securities to be offered for the accounts of the Company,
the Piggyback Holders and other holders registering securities pursuant to
registration rights shall be allocated as follows:
(i) if such registration has been initiated by
the Company as a primary offering, first to the Company, second to the
Piggyback Holders whose Piggyback Securities are to be included in
such registration, pro rata, on the basis of the number of Registrable
Shares owned by such holders, and third to the holders of all other
securities sought to be included pursuant to other registration rights
in accordance with any applicable agreement between the Company and
such holders;
(ii) if such registration has been initiated by a
Demand Holder pursuant to Section 2.1, then such allocation shall be
made in accordance with Section 2.1.4; or
(iii) if such registration has been initiated by a
holder of registration rights arising under an agreement other than
this Agreement, first to such initiating holder, second to the
Piggyback Holders whose Piggyback Securities are to be included in
such registration and to the holders of all
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other securities sought to be included pursuant to other registration
rights, pro rata, on the basis of the number of Registrable Shares
owned by each such holder, and third to the Company.
If as a result of the provisions of this Section 2.2.2 any Piggyback Holder
shall not be entitled to include all Piggyback Securities in a registration
that such Piggyback Holder has requested to be so included, such Piggyback
Holder may withdraw such Holder's request to include Piggyback Securities in
such registration statement.
2.3 Ancillary Agreements.
2.3.1 Holdback Agreement. Unless the managing underwriter otherwise
agrees, each of the Company and the Holders agrees, and the Company agrees, in
connection with any underwritten registration, to use its reasonable efforts to
cause its Affiliates to agree, not to effect any public sale or distribution of
any Common Stock or Common Stock Equivalents during the ten Business Days prior
to the effectiveness under the Securities Act of any underwritten registration
and during such time period after the effectiveness under the Securities Act of
any underwritten registration (not to exceed 120 days) (except, if applicable,
as part of such underwritten registration) as the Company and the managing
underwriter may agree.
2.3.2 Underwriting Agreements. No Person may participate in any
registration statement hereunder unless such Person (x) agrees to sell such
person's Registrable Shares on the basis provided in any underwriting
arrangements approved by the Company and (y) completes and executes all
(appropriate, usual and customary) questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements; provided, however, that no
such Person shall be required to make any representations or warranties in
connection with any such registration other than representations and warranties
as to (i) such Person's ownership of his or its Registrable Shares to be sold
or transferred free and clear of all liens, claims, and encumbrances, (ii) such
Person's power and authority to effect such transfer, and (iii) such matters
pertaining to compliance with securities laws as may be reasonably requested;
provided further, however, that the obligation of such Person to indemnify
pursuant to any such underwriting arrangements shall be several, not joint and
several, among such Persons selling Registrable Shares, and the liability of
each such Person will be in proportion to, and provided further that such
liability will be limited to, the net amount received by such Person from the
sale of his or its Registrable Shares pursuant to such registration and subject
to Section 2.7 hereof.
2.4 Registration Procedures. Whenever any Holder has requested
that any Registrable Shares be registered pursuant to this Agreement, the
Company will use its commercially reasonable efforts to effect the registration
and the sale of such Registrable Shares in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(i) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(ii) prepare and file with the SEC such amendments, post-effective
amendments, and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days (or such lesser
period as is necessary for the underwriters in an underwritten offering to sell
unsold allotments) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
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(iii) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), any documents incorporated by reference therein and such other
documents as such seller or underwriters may reasonably request in order to
facilitate the disposition of the Registrable Shares owned by such seller or
the sale of such securities by such underwriters (it being understood that,
subject to the requirements of the Securities Act and applicable State
securities laws, the Company consents to the use of the prospectus and any
amendment or supplement thereto by each seller and the underwriters in
connection with the offering and sale of the Registrable Shares covered by the
registration statement of which such prospectus, amendment or supplement is a
part);
(iv) use its commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the managing underwriter reasonably requests; use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when a
prospectus or any 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, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or
which 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 not misleading, and, as promptly as
practicable thereafter, prepare and file with the SEC and furnish a supplement
or amendment to such prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Shares, such prospectus will not contain any
untrue statement of a material fact or omit a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(vi) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act;
(vii) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or any seller reasonably requests
to be included therein, including, without limitation, with respect to the
Registrable Shares being sold by such seller, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
underwritten offering of the Registrable Shares to be sold in such offering,
and promptly make all required filings of such prospectus supplement or
post-effective amendment;
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(viii) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a registration statement (in
the form in which it was incorporated), deliver a copy of each such document to
each seller;
(ix) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall not
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available
to the Company's transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties
of the Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
that, unless the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes, after
consultation with counsel for the Company, that to do so would cause the
Company to forfeit an attorney-client privilege that was applicable to such
information or (B) if either (1) the Company has requested and been granted
from the SEC confidential treatment of such information contained in any filing
with the SEC or documents provided supplementally or otherwise or (2) the
Company reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing any such
information with respect to (A) or (B) such Holder of Registrable Shares
requesting such information agrees to enter into a confidentiality agreement in
customary form and subject to customary exceptions; and provided, further that
each Holder of Registrable Shares agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company to allow the Company, if practical, at its expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(xi) furnish to each seller underwriter a signed counterpart of (A)
an opinion or opinions of counsel to the Company, and (B) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(xii) cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed, or (B) authorized to
be quoted and/or listed (to the extent applicable) on the National Association
of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or the
NASDAQ National Market System if the Registrable Shares so qualify;
(xiii) provide a CUSIP number for the Registrable Shares included in
any registration statement not later than the effective date of such
registration statement;
(xiv) cooperate with each seller and each underwriter participating
in the disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. ("NASD");
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(xv) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
(xvii) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
(xviii) enter into such agreements (including underwriting agreements
in the managing underwriter's customary form) as are customary in connection
with an underwritten registration;
(xix) advise each seller of such Registrable Shares, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued; and
(xx) cooperate with the underwriters with respect to all road shows
and other marketing activities as may be reasonably requested by the
underwriters.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition
of any Registrable Shares that, upon receipt of any notice (a "Suspension
Notice") from the Company of the happening of any event of the kind described
in Section 2.4(v)(B) or (C), such Holder will forthwith discontinue disposition
of Registrable Shares until such Holder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the
Company, such Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the time period regarding
the effectiveness of registration statements set forth in Section 2.4(ii)
hereof shall be extended by the number of days during the period from and
including the date of the giving of the Suspension Notice to and including the
date when each seller of Registrable Shares covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus or the Advice. The Company shall use its commercially reasonable
efforts and take such actions as are reasonably necessary to render the Advice
as promptly as practicable.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 2 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Schedule E of the By-Laws of the NASD, and of its counsel), as may be required
by the rules and regulations of the NASD, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualifications of the Registrable
Shares), rating agency fees, printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), messenger and
delivery expenses, the Company's internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the fees and expenses
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incurred in connection with any listing of the Registrable Shares, fees and
expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities act liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the
Company and reasonable fees and expenses of one firm of counsel for the sellers
(which shall be selected by the holders of a majority of the Registrable Shares
being included in any particular registration statement) (all such expenses
being herein called "Registration Expenses") will be borne by the Company
whether or not any registration statement becomes effective; provided that,
except as expressed otherwise provided above, in no event shall Registration
Expenses include any underwriting discounts, commissions, or fees attributable
to the sale of the Registrable Shares or any counsel, accountants, or other
persons retained or employed by the Holders.
2.7 Indemnification.
2.7.1 The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by 2.7.3) based
upon, arising out of, related to or resulting from any untrue or alleged untrue
statement of a material fact contained in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, (B)
against any and all loss, liability, claim, damage, and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, and (C) against any and all costs and expenses
(including reasonable fees and disbursements of counsel) as may be reasonably
incurred in investigating, preparing, or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon, arising out of, related to or
resulting from any such untrue statement or omission or alleged untrue
statement or omission, to the extent that any such expense or cost is not paid
under subparagraph (A) or (B) above; except insofar as the same are made in
reliance upon and in strict conformity with information furnished in writing to
the Company by such seller or any Seller Affiliate for the express purpose of
the use therein or arise from such seller's or any Seller Affiliate's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after the Company has furnished such seller or Seller
Affiliate with a sufficient number of copies of the same. The reimbursements
required by this Section 2.7.1 will be made by periodic payments during the
course of the investigation or defense, as and within 15 Business Days of when
bills are received for expenses incurred.
2.7.2 In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Company in writing such information as the Company reasonably requests for
use in connection with any such registration statement or prospectus and, to
the fullest extent permitted by law, each such seller will indemnify the
Company and its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act or the Exchange Act) against any and
all losses, claims, damages, liabilities, and expenses (including, without
limitation, reasonable attorneys' fees and disbursements except as limited by
Section 2.7.3) resulting from any untrue statement or alleged untrue statement
of a material fact contained in the registration statement, prospectus, or any
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
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extent that such untrue statement or alleged untrue statement or omission or
alleged omission is contained in any information so furnished in writing by
such seller or any of its Seller Affiliates specifically for inclusion in the
registration statement; provided that the obligation to indemnify will be
several, not joint and several, among such sellers of Registrable Shares, and
the liability of each such seller of Registrable Shares will be in proportion
to, and provided further that such liability will be limited to, the net amount
received by such seller from the sale of Registrable Shares pursuant to such
registration statement; provided, however, that such seller of Registrable
Shares shall not be liable in any such case to the extent that prior to the
filing of any such registration statement or prospectus or amendment thereof or
supplement thereto, such seller has furnished in writing to the Company
information expressly for use in such registration statement or prospectus or
any amendment thereof or supplement thereto which corrected or made not
misleading information previously furnished to the Company.
2.7.3 Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (X) the
indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). If such defense is assumed by the indemnifying party
pursuant to the provisions hereof, such indemnifying party shall not settle or
otherwise compromise the applicable claim unless (1) such settlement or
compromise contains a full and unconditional release of the indemnified party
or (2) the indemnified party otherwise consents in writing. An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and disbursements of such
additional counsel or counsels.
2.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7.1 or Section 2.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and
the parties, relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this
Section 2.7.4 were determined by pro rata allocation (even if the Holders or
any underwriters or all of them were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 2.7.4. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities,
or
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expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 2.7.3, defending any such action or claim. Notwithstanding the
provisions of this Section 2.7.4, no Holder shall be required to contribute an
amount greater than the dollar amount by which the proceeds received by such
Holder with respect to the sale of any Registrable Shares exceeds the amount of
damages which such Holder has otherwise been required to pay by reason of such
statement or omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations in this Section 2.7.4 to
contribute shall be several in proportion to the amount of Registrable Shares
registered by them and not joint.
If indemnification is available under this Section 2.7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.7.1 and Section 2.7.2 without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.7.4.
2.7.5 The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director, or
controlling Person of such indemnified party and will survive the transfer of
securities.
ARTICLE 3
TERMINATION
The provisions of this Agreement shall terminate on the tenth
anniversary of the date of this Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.1 Notices. Any notices or other communications
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows
(or at such other address as may be substituted by notice given as herein
provided):
If to the Company:
International Home Foods, Inc.
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Managing Director and Principal
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Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and
five calendar days after mailing if sent by registered or certified mail
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 4.2 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 4.3 Successors and Assigns. Whether or not an express
assignment has been made pursuant to the provisions of this Agreement,
provisions of this Agreement that are for the Holders' benefit as the holders
of any Registrable Securities are also for the benefit of, and enforceable by,
all subsequent holders of Registrable Securities, except as otherwise expressly
provided herein. This Agreement shall be binding upon the Company, each
Holder, and their respective successors and assigns.
Section 4.4 Duplicate Originals. All parties may sign any number
of copies of this Agreement. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
Section 4.5 Severability. In case any provision in this
Agreement shall be held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and the remaining provisions shall not in any way be
affected or impaired thereby.
Section 4.6 No Waivers; Amendments.
4.6.1 No failure or delay on the part of the Company or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
4.6.2 Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Company and the Required Holders; provided that no such amendment or waiver
shall, (i) unless signed by all of the Holders, amend the provisions of Section
2.1, (ii) unless signed by all of the Holders affected, (A) amend the
provisions of this Section 4.6.2 or (B) change the number of Holders which
shall be required for the Holders or any of them to take any action under this
Section 4.6.2 or any other provision of this Agreement.
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4.7 Other Rights. From and after the date of this Agreement, the
Company shall not grant to any Holder any additional registration rights with
respect to, or otherwise register any, Registrable Shares unless such
additional registration rights are also offered to all other Holders of
Registrable Shares.
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
INTERNATIONAL HOME FOODS, INC.
By: /s/ XXXX X. XXXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
AHP SUBSIDIARY HOLDING CORPORATION
Address:
c/o American Home Products Corporation
Five Giralda Farms By: /s/ XXXX X. XXXXXXXXX
Madison, New Jersey 07940 --------------------------------
Attention: President Name: Xxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
AHFP HOLDING CORPORATION
Address:
c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000 By: /s/ XXXXXX X. XXXXX
Dallas, TX 75201 --------------------------------
Attention: Xxxxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxx
Managing Director and --------------------------------
Principal Title: Vice President and Assistant
Secretary
--------------------------------
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