EXHIBIT 3.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
as of this 24th day of September, 1997 between XXXXXXXX BRANDS
INTERNATIONAL, INC., a New Jersey corporation ("Xxxxxxxx"), and Xxx
Xxxxxxx and Xxxxxxx Xxxxxxx, acting in their capacity as shareholders
representatives ("Shareholders Representatives") for the individuals
listed on the attached Exhibit A ("Shareholders").
Premises:
The Shareholders are entitled to receive shares (the "Common
Shares") of Chiquita's issued and outstanding capital stock, par value
thirty-three cents ($.33) per share ("Common Stock") and shares (the
"Preferred Shares") of Chiquita's issued and outstanding $2.50 Convertible
Preferred Stock, Series C (liquidation preference of $50.00 per share)
("Preferred Stock")in connection with the merger of each of Owatonna
Canning Company, Xxxxxx Xxxxxxx Company, Midwest Foods, Inc. and Xxxxxxx
Canning Company (collectively the "Companies") into Xxxxxxxx.
In connection with the issuance of the Common Shares and the
Preferred Shares to the Shareholders, Xxxxxxxx agreed to provide the
Shareholders with certain rights to require Xxxxxxxx to register with the
Securities and Exchange Commission (the "Commission") and applicable state
securities law agencies the sale by the Shareholders of Common Shares and
shares of Common Stock into which the Preferred Shares are converted
(collectively the "Registrable Shares").
Pursuant to Section 3.1 of the Agreement and Plan of Merger between
Xxxxxxxx and the Companies dated as of August 22, 1997 ("Plan of Merger"),
Xxx Xxxxxxx and Xxxxxxx Xxxxxxx have been designated the representatives
of the Shareholders for the purposes of this Agreement. Section 3.1 of
the Plan of Merger provides for and describes the authority, rights and
responsibilities of the Shareholders Representatives and gives the
Shareholders Representatives the authority to execute this Agreement on
behalf of each Shareholder.
Based on these premises, the parties agree as follows:
Agreement:
1. Demand Registration Rights.
1.1.On one occasion, after completion of the process set forth in
Section 2 to determine which Registrable Shares are to be included in the
request and upon the written request of the Shareholders Representatives
given no later than 45 days before the first anniversary of the Closing
Date, as that term is defined in the Plan of Merger, Xxxxxxxx will prepare
and file with the Commission and any state securities law agencies as the
Shareholders Representatives may reasonably request, promptly after such
request and in no case more than thirty (30) days after receipt of such
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request, and thereafter use its best efforts to cause to become effective
a registration statement (the "Registration Statement") on Form S-3 (or
such other form then available for such registration) under and complying
with the Securities Act of 1933, as amended (the "Act"), covering such
number of Registrable Shares as shall be specified in the Shareholders
Representatives' request; provided, however, that such request shall not
include more than 500,000 or less than 200,000 Registrable Shares,
appropriately adjusted to reflect stock splits, stock dividends,
reorganizations, consolidations and similar changes hereafter effected.
The right to request the preparation and filing of the Registration
Statement is limited to one (1) request to Xxxxxxxx by the Shareholders
Representatives on behalf of all of the Shareholders collectively, whether
or not all the Shareholders participate in the request. For the purposes
of this Agreement, all Shareholders whose Registrable Shares are covered
by the Registration Statement shall be referred to as "Selling
Shareholders" and all such Registrable Shares shall be referred to as
"Registration Shares".
1.2.Xxxxxxxx does not guarantee or provide any assurance that the
Selling Shareholders will be able to sell any Registration Shares nor, if
sold, at what price they may be sold. Moreover, Xxxxxxxx has no
obligation to provide an underwriter to assist the Selling Shareholders in
selling Registration Shares. However, Xxxxxxxx will cooperate with a
managing underwriter engaged by the Shareholders Representatives or the
Selling Shareholders for the purpose of selling the Registration Shares,
provided the managing underwriter is a nationally recognized investment
banking firm and is consented to by Xxxxxxxx, which consent will not be
unreasonably withheld.
1.3.Xxxxxxxx shall be entitled to postpone the filing with the
Commission of the Registration Statement, or any pre-effective amendment
thereto, or a request for the acceleration of the effectiveness of the
Registration Statement for a period to be specified by Xxxxxxxx in a
notice to the Shareholders Representatives if: (a)(i) in the sole judgment
of Xxxxxxxx, based on advice of counsel, it would be appropriate to
disclose in the prospectus forming a part of the Registration Statement
information not otherwise then required by law to be publicly disclosed,
and (ii) in Chiquita's sole judgment, such disclosure or the filing of the
Registration Statement, or any amendment thereto, is likely to interfere
with any existing or prospective business situation, transaction or
negotiation of Xxxxxxxx or any of its subsidiaries or affiliates, or (b)
Xxxxxxxx or any of its subsidiaries would be required, as a result of the
filing of the Registration Statement, to prepare any financial statements
other than those which it or they customarily prepare in the ordinary
course of its or their business, or (c) in Chiquita's sole judgment, it
would be detrimental to a pending or proposed material equity financing by
Xxxxxxxx to proceed with the filing of the Registration Statement;
provided, that the duration of all such postponements shall not exceed, in
the aggregate, ninety (90) days; and provided further, that Xxxxxxxx shall
promptly make such filing as soon as the conditions which permit it to
postpone such filing no longer exist (or the 90-day aggregate postponement
period shall have otherwise expired); and provided further, that in the
event of any such postponement, the requesting Shareholders shall have the
right to withdraw their request for registration at any time prior to five
business days before the end of the postponement period specified in
Chiquita's notice to the Shareholders Representatives, and such withdrawn
request shall not be considered the request for registration provided for
under Section 1.1 hereof.
1.4. If the method of distribution of the Registration Shares
proposed to be used is not reflected in the prospectus (including any
supplements thereto) forming a part of the Registration Statement, the
Shareholders Representatives shall promptly provide Xxxxxxxx with a
description of such method of distribution contemplated by the Selling
Shareholders, and Xxxxxxxx shall file any and all amendments and
supplements necessary to include such description in the Registration
Statement.
2. Covenants of the Shareholders.
2.1If a Shareholder wishes the Shareholders Representatives to
request a registration as provided for under Section 1.1 hereof, that
Shareholder shall notify the Shareholders Representatives who shall
promptly give notice of such request to Xxxxxxxx and to all Shareholders
at the last address known to such Shareholders Representatives. No later
than 15 days after the Shareholders Representatives send such notice to
Xxxxxxxx and the Shareholders, each Shareholder who desires to sell
Registrable Shares pursuant to such request shall notify the Shareholders
Representative in writing indicating the number of Registrable Shares such
Shareholder desires to sell. If the aggregate number of Registrable
Shares requested to be registered exceeds the limit provided for in
Section 1.1 hereof, the Shareholders Representatives shall allocate the
number of Registrable Shares to be sold on a basis proportionate to the
number of Registrable Shares owned by the requesting Shareholders on the
date of the notice (the "Notice Date") from the Shareholders
Representatives; provided, that, in the event the Adjustment Date (as
defined in the Plan of Merger) occurs after the Notice Date and before the
effective date of the Registration Statement, such allocation shall be on
a basis proportionate to the number of Registrable Shares owned by the
requesting Shareholders on the date immediately following the Adjustment
Date.
2.2.The request for registration made by the Shareholders
Representatives pursuant to Section 1.1 shall specify the number of
Registrable Shares included in the request, express the requesting
Shareholders' present intention to offer such Registrable Shares for
distribution and contain an undertaking by the Shareholders
Representatives on behalf of the requesting Shareholders to provide all
such information and materials and take all such actions and execute all
such documents as may be required in order to permit Xxxxxxxx to comply
with its obligations under this Agreement and all applicable requirements
of the Commission and to obtain acceleration of the effective date of the
Registration Statement.
2.3 If Xxxxxxxx gives the Shareholders Representatives a notice as
provided for in Section 3.4, the Shareholders Representatives and the
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Selling Shareholders will immediately cease any disposition of
Registration Shares pursuant to the Registration Statement until Xxxxxxxx
notifies the Shareholders Representatives pursuant to Section 3.5 that a
prospectus supplement has been filed or an amendment to the Registration
Statement has been declared effective by the Commission or that any stop
order or other suspension has been lifted, provided that, if such
supplement or amendment relates to a misstatement or omission relating to
any information included in the Registration Statement by or about
Xxxxxxxx, then the effectiveness period required under Section 3.1 shall
be deemed tolled from the date of Chiquita's notice pursuant to Section
3.4 through the date of Chiquita's notice pursuant to Section 3.5 that
such amendment or supplement has been declared effective by the
Commission.
2.4 If the Shareholders Representatives believe, or receive
information to the effect that, the prospectus (including any supplements
thereto) forming part of the Registration Statement contains an untrue
statement of material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, to the extent
such facts or statements relate to information provided to Xxxxxxxx by, or
on behalf of, the Shareholders for inclusion in the Registration
Statement, then the Shareholders Representatives will promptly notify
Xxxxxxxx in writing.
3.Covenants of Xxxxxxxx.
So long as Xxxxxxxx is under an obligation pursuant to the
provisions of Section 1 hereof:
3.1.Xxxxxxxx will prepare and file with the Commission such amend-
ments and supplements to the Registration Statement and the prospectus
forming part of the Registration Statement as may be necessary to keep the
Registration Statement effective for such period as shall be necessary to
complete the distribution of the Registration Shares, but in no event for
longer than the earlier to occur of 90 days after the Registration
Statement has been declared effective by the Commission (subject to
extensions as are contemplated by Section 2.3) and one year after the
Closing Date;
3.2.Once the Registration Statement has been declared effective by
the Commission, Xxxxxxxx will cause copies of the prospectus forming a
part of the Registration Statement, and any supplement thereto, to be
mailed or delivered to the New York Stock Exchange so that the Selling
Shareholders may rely on Rule 153 under the Act. Notwithstanding the
immediately preceding sentence, Xxxxxxxx will furnish to the Shareholders
Representatives such number of copies of the prospectus forming a part of
the Registration Statement, including, without limitation, a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as the Shareholders Representatives may reasonably request in
order to facilitate the sale of the Registration Shares;
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3.3.Xxxxxxxx will use reasonable efforts: (a) to register or
qualify, not later than the effective date of the Registration Statement,
the Registration Shares under the securities or Blue Sky laws of such
jurisdictions within the United States as the Shareholders Representatives
may reasonably request, and (b) to do any and all other reasonable acts or
things which may be necessary or advisable to enable the Selling
Shareholders to consummate the public sale or other disposition in such
jurisdictions of such Registration Shares; provided, however, that
Xxxxxxxx will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or taxation in any
jurisdiction where it is not then so subject;
3.4.Xxxxxxxx will promptly notify the Shareholders Representatives
in writing if (a) a stop order has been issued by the Commission or any
other suspension of effectiveness of the Registration Statement has
occurred or (b) Xxxxxxxx believes the prospectus (including any
supplements thereto) forming part of the Registration Statement may
contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
3.5 As soon after the occurrence of an event specified in Section
3.4 or 2.4 as may be practicable, at the request of the Shareholders
Representatives, Xxxxxxxx will, in the case of an event specified in
Section 3.4(a), use reasonable efforts to cause the withdrawal of any
order suspending the effectiveness of the Registration Statement to be
obtained and, in the case of an event specified in Section 3.4(b) or 2.4,
prepare and file with the Commission and the New York Stock Exchange, and
provide copies to the Shareholders Representatives of, a supplement to the
prospectus or an amendment to the Registration Statement as may be
necessary to meet the requirements of the Act. After any order suspending
the effectiveness of the Registration Statement has been withdrawn or any
supplement to the prospectus has been filed or any amendment to the
Registration Statement has been declared effective, Xxxxxxxx will
immediately notify the Shareholder Representatives.
3.6.Xxxxxxxx will use reasonable efforts to furnish, at the request
of the Shareholders Representatives or any underwriter of the Registration
Shares, an opinion of legal counsel to Xxxxxxxx, covering such matters as
are typically covered by opinions of issuer's counsel in underwritten
offerings under the Act; and
3.7.Xxxxxxxx will enter into an underwriting agreement with a
managing underwriter retained by the Shareholders Representatives or the
Selling Shareholders in connection with an offering pursuant to the
Registration Statement, which agreement will contain representations,
warranties and agreements customarily included by an issuer in
underwriting agreements with respect to a secondary distribution.
4. Costs and Expenses.
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4.1.With respect to the registration request under Section 1.1
hereof, Xxxxxxxx shall bear all Preparation Costs and Registration Costs
(as defined below) and the Selling Shareholders shall bear all Selling
Shareholder Costs (as defined below).
4.2.For purposes hereof, (a) "Preparation Costs" means the entire
cost and expense of preparing the Registration Statement, including,
without limitation, all printing expenses, the fees and expenses of
Chiquita's counsel and its independent accountants, the fees and expenses
of counsel and accountants of the Selling Shareholders in an amount up to
$7,500, all other out-of-pocket expenses incident to the preparation and
printing of the Registration Statement and all amendments and supplements
thereto, the cost of furnishing copies of each preliminary prospectus,
each final prospectus and each amendment or supplement thereto to
underwriters, brokers and dealers and other purchasers of the Registration
Shares, and the costs and expenses incurred in connection with the
qualification of the Registration Shares under Blue Sky or other state
securities laws of such jurisdictions within the United States as the
Shareholders Representatives reasonably request, (b) "Registration Costs"
means all registration and filing fees payable to the Commission or any
state securities law agency, and (c) "Selling Shareholder Costs" means the
fees and expenses of counsel and accountants of the Selling Shareholders
in excess of $7,500 and all transfer taxes, underwriting discounts and
commissions attributable to Registration Shares.
5.Indemnification.
5.1.Xxxxxxxx will indemnify the Shareholders Representatives, the
Selling Shareholders and each underwriter of Registration Shares, as well
as any persons, if any, who control such Selling Shareholders or
underwriters, against all claims, losses, damages, liabilities, costs and
expenses (including reasonable attorney and accountant fees and all
reasonable expenses incurred in discovery proceedings, as witnesses or in
preparation for any judicial or administrative proceedings) incurred by
any such indemnified party arising out of or related to any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the prospectus forming a part of the Registration
Statement or any related notification or similar filing under the
securities laws and the rules and regulations thereunder of any
jurisdiction or from 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 in light of the circumstances then
existing, except insofar as the same may have been based upon information
furnished in writing to Xxxxxxxx by the Selling Shareholders, the
Shareholders Representatives or such underwriter expressly for use therein
and used in accordance with such writing.
5.2.The Selling Shareholders will: (a) furnish to Xxxxxxxx, through
the Shareholders Representatives, such information concerning them as may
be requested by Xxxxxxxx and which, Xxxxxxxx is advised by its legal
counsel, is necessary or required by then applicable securities laws and
the rules and regulations thereunder in connection with the Registration
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Statement or qualification of the Registration Shares, and (b) indemnify
Xxxxxxxx, its officers and directors and each underwriter of the
Registration Shares (and any persons who control Xxxxxxxx or any such
underwriter) against all claims, losses, damages, liabilities, costs and
expenses (including reasonable attorney and accountant fees and all
reasonable expenses incurred in discovery proceedings, as witnesses or in
preparation for any judicial or administrative proceedings) incurred by
any such indemnified party arising out of or related to any untrue
statement or alleged untrue statement of material fact contained in such
information or from any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements contained therein not misleading in light of the circumstances
then existing, but only to the extent such information is furnished in
writing to Xxxxxxxx by the Selling Shareholders or the Shareholders
Representatives or, on behalf of the Selling Shareholders or the
Shareholders Representatives, by an underwriter of Registration Shares, in
any event expressly for use in the Registration Statement, the prospectus
forming a part of the Registration Statement or any related notification
or similar filing under the securities laws and the rules and regulations
thereunder of any jurisdiction and such information is used in accordance
with such writing.
5.3.If any action is brought or any claim is made against any party
entitled to be indemnified pursuant to this Section 5 in respect of which
indemnity may be sought against the indemnitor pursuant to this Section 5,
such party shall promptly notify the indemnitor in writing of the
institution of such action or the making of such claim and the indemnitor
shall assume the defense of such action or claim, including the employment
of counsel and payment of expenses. Any such indemnified party shall have
the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party, unless the employment of such counsel shall have been authorized in
writing by the indemnitor in connection with the defense of such action or
claim or such indemnified party shall have reasonably concluded that there
may be defenses available to it which are different from or additional to
those available to the indemnitor (in which case the indemnitor shall not
have the right to direct any different or additional defense of such
action or claim on behalf of such indemnified party), in either of which
events such fees and expenses of not more than one additional counsel for
such indemnified party shall be paid by the indemnitor. The failure to
deliver written notice to the indemnitor within a reasonable time of the
commencement of any such action or the making of any such claim, if
materially prejudicial to the indemnitor's ability to defend such action,
shall relieve such indemnitor of any liability to the indemnified party
under this Section 5.3, but the failure to deliver any such written notice
to the indemnitor will not relieve it of any liability that it may have to
any indemnified party otherwise than pursuant to this Section 5.3 of this
Agreement. Anything in this Section 5 to the contrary notwithstanding,
the indemnitor shall not be liable for any settlement of any such claim or
action effected without its written consent, which consent will not be
unreasonably withheld.
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5.4.If the indemnification provided for in this Agreement is
unavailable or insufficient to hold harmless an indemnified party in
respect of any claims, losses, damages, liabilities or expenses referred
to herein, as determined by a court of competent jurisdiction, then each
indemnitor shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such claims, losses, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnitor, on the one hand, and the indemnified party, on the other, in
connection with the statements or omissions which resulted in such claims,
losses, damages, liabilities or expenses as well as any other relevant
equitable considerations. The relative fault 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 the indemnitor, on the
one hand, or the indemnified party on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Xxxxxxxx and the
Shareholders agree that it would not be just and equitable if
contributions pursuant to this Section 5.4 were determined by pro rata
allocation or by any other method of allocation which would not take
account of the equitable considerations referred to in this Section 5.4.
The amount paid or payable by an indemnitor as a result of the claims,
losses, damages, liabilities or expenses referred to in this Section 5.4
shall include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentations
(within the meaning of Section ll(f) of the Act) shall be entitled to
contribution from any person who is not also guilty of such fraudulent
misrepresentation.
6. Miscellaneous.
6.1.Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing
and shall be deemed given only if: (a) delivered personally or by
courier, or (b) sent by registered or certified mail, postage prepaid, or
(c) sent by confirmed facsimile with the original to follow by first-class
mail, postage prepaid, as follows:
If to Xxxxxxxx:
Xxxxxxxx Brands International, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
If to the Shareholders Representatives:
Xxx Xxxxxxx
2415 Addison
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Xxxxxxx, Xxxxx 00000
and
Xxxxxxx Xxxxxxx
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as the addressee may have specified in a notice
duly given to the sender as provided herein. Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to
have been given as of the date it is delivered, received by facsimile
transmission or three days after it has been mailed.
6.2.This Agreement shall be binding upon, and shall inure to the
benefit of, Xxxxxxxx and the Shareholders Representatives and their
respective permitted successors and assigns.
6.3.This Agreement shall be governed by and construed under the laws
of the State of Ohio.
6.4.The rights granted to the Shareholders under this Agreement: (a)
apply only to the Registrable Shares and the Preferred Shares, (b) are
personal to the Shareholders and shall not be assignable in whole or in
part by any of the Shareholders, except by will or applicable law in the
event of death, (c) shall terminate as to any Registrable Shares or
Preferred Shares which are sold, assigned or otherwise transferred by the
Shareholders, except as permitted by Section 6.4(b), and (d) shall
terminate in full on the first anniversary of the Closing Date.
6.5.This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
6.6 The Shareholders Representatives shall be entitled to
reimbursement for out-of-pocket expenses incurred by them in acting on
behalf of the Shareholders pursuant to this Agreement from the Expenses
Fund (as defined in the Plan of Merger). Section 3.1 of the Plan of
Merger (which sets forth, among other things, the authority of the
Shareholders Representatives and limitations on the liability of the
Shareholders Representatives) shall be deemed incorporated into this
Agreement by reference.
Intending to be legally bound, the parties have executed this
Agreement as of the date first above written.
XXXXXXXX BRANDS INTERNATIONAL,INC.
By: /s/ Xxxxxx X. Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
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/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Shareholders Representative
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Shareholders Representative
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