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EXHIBIT 4.2
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Registration Rights Agreement
Dated As of June 20, 1997
among
Di Giorgio Corporation
and
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
and
BT Securities Corporation
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered into
this 20th day of June, 1997, among Di Giorgio Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and BT Securities Corporation (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated June
13, 1997, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $155 million aggregate principal
amount of the Company's 10% Senior Notes due 2007 (the "Securities"). In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
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.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
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"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 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 documents incorporated by
reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the 10% Senior Notes due 2007
issued by the Company under the Indenture containing terms identical to
the Securities in all material respects (except for references to
certain interest rate provisions, restrictions on transfers and
restrictive legends), to be offered to Holders of Securities in
exchange for Registrable Securities pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Registrable
Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of June 20, 1997, between the Company and The Bank of New
York, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms
thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning
set forth in the preamble.
"Issue Date" shall mean the date on which the Securities are
originally issued under the Indenture.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
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 and
other obligors on the Securities or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether
such consent or approval was given by the Holders of such required
percentage amount.
"Participating Broker-Dealer" shall mean Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and BT Securities Corporation and any other
broker-dealer which
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makes a market in the Securities and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
"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 any such 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 a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that Securities shall cease to be Registrable Securities when
(i) 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)
such Securities have been sold to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Securities shall have ceased to be outstanding or (iv)
the Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer and are thereafter freely tradeable
by the holder thereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (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 fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such
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performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) the reasonable fees
and disbursements of Xxxxx, Xxxxx & Xxxxx, special counsel representing
the Holders of Registrable Securities and (ix) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding 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 which covers any of the Exchange Securities or 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 by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof
"Shelf Registration Statement" shall mean a shelf registration
statement of the Company pursuant to the provisions of Section 2.2 of
this Agreement which covers all of the Registrable Securities 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 by reference therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company shall use its best efforts to (A)
prepare and, as soon as practicable but not later than 60 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer
and the issuance and delivery to the Holders, in exchange for the Registrable
Securities, a like principal amount of Exchange Securities, (B) cause the
Exchange Offer Registration Statement to be declared effective under the 1933
Act
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within 120 days of the Closing Date, (C) keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer and (D) cause the
Exchange Offer to be consummated not later than 150 days following the Closing
Date. The Exchange Securities will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b)
is not a broker-dealer tendering Registrable Securities acquired directly from
the Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the 1933 Act and without material restrictions under the securities laws
of a substantial proportion of the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of
not less than 30 calendar days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m. (Eastern Standard Time), on the last
business day of the Exchange Period, by sending to the institution
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 his election to have such Securities
exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case of
the Initial Purchasers and Participating Broker-Dealers as provided
herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
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As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable Securities, from
the Issue Date. The Exchange Offer shall not be subject to any conditions, other
than (i) that the Exchange Offer, or the making of any exchange by a Holder,
does not violate applicable law or any applicable interpretation of the staff of
the SEC, (ii) the due tendering of Registrable Securities in accordance with the
Exchange Offer, and (iii) that each Holder of Registrable Securities exchanged
in the Exchange Offer shall have made certain customary representations,
including representations that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, that all Exchange Securities
to be received by it shall be acquired in the ordinary course of its business
and that at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Securities, and any such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. In the event that (i) any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC do not permit the Company to effect the Exchange Offer as contemplated by
Section 2.1 hereof, (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 120 days following the original issue
of the Registrable Securities or the Exchange Offer is not consummated within
150 days after the original issue of the Registrable Securities, (iii) upon the
request of any Initial Purchaser with respect to any Registrable Securities
which it acquired directly from the Company and, with respect to other
Registrable Securities held by it, if such Initial
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Purchaser is not permitted, in the opinion of counsel to such
Initial Purchaser, pursuant to applicable law or applicable
interpretations of the Staff of the SEC, to participate in the Exchange
Offer and thereby receive securities that are freely tradeable without
restriction under the 1933 Act and applicable blue sky or state
securities laws or (iv) if a Holder is not permitted by applicable law
to participate in the Exchange Offer based upon written advice of
counsel to the effect that such Holder may not be legally able to
participate in the Exchange Offer or does not receive Exchange
Securities pursuant to the Exchange Offer which are fully tradeable by
the Holder without restriction under the 1933 Act and under applicable
blue sky or state securities laws, then in case of each of clauses (i)
through (iv) the Company shall, at its cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use its best efforts to cause to be declared effective
as promptly as practicable but no later than 150 days after the Issue
Date (or, in the case of a request by any Initial Purchaser, within 30
days of such request), a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders from time
to time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth
in such Shelf Registration Statement.
(b) Subject to Section 2.4(b), use its best efforts to keep the
Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a
period of two years (or one year in the case of a request solely by an
Initial Purchaser) from the date the Shelf Registration Statement is
declared effective by the SEC, or for such shorter period that will
terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities.
(c) Notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, as required by Section 3(b) below, and to furnish
to the Holders of
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Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
The Company shall not be required to include any Registrable Securities
of a Holder in any Shelf Registration Statement pursuant to this Agreement
unless such Holder furnishes to the Company, within 20 business days after
receipt by such Holder of a request therefor, such information as the Company
may reasonably request for use in connection with such Shelf Registration
Statement.
2.3 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2 hereof. Except
as provided herein, each Holder shall pay all expenses of its counsel,
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.
2.4 Effectiveness. The Company will be deemed not to have used its best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company voluntarily takes any affirmative
action that would, or omits to take any action which omission would, result in
any such Registration Statement not being declared effective or in the holders
of Registrable Securities covered thereby not being able to exchange or offer
and sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless (i) such action is required by applicable law or
(ii) with respect to the effectiveness of a Shelf Registration Statement, such
action or omission is taken or made by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company complies with the requirements of Section 3(k) hereof, if applicable.
(b) The Company may suspend the availability of the Shelf Registration
Statement and the use of any Prospectus which is a part thereof (i) for one
period not to exceed 60 days in any six month period or (ii) for up to four
periods not to exceed an aggregate of 90 days in any 12 month period, if such
suspension is effected in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly complies
with the requirements of Section 3(k) hereof, if applicable.
(c) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 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 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
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interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5 Interest. In the event that (a) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to the 60th calendar day
following the Issue Date, (b) the Exchange Offer Registration Statement has not
been declared effective on or prior to the 120th calendar day following the
Issue Date, (c) the Exchange Offer is not consummated on or prior to the 150th
calendar day following the date of original issue of the Securities or a Shelf
Registration Statement is not declared effective on or prior to the 150th
calendar day following the Issue Date (or, if a Shelf Registration Statement is
required to be filed because of the request of any Initial Purchaser, 30 days
following the request by any such Initial Purchaser that the Company file the
Shelf Registration Statement), or (d) the Exchange Offer Registration Statement
or Shelf Registration Statement is declared effective but thereafter ceases to
be effective or usable within the applicable period as provided in this
Agreement except pursuant to Section 2.4(b) (each such event referred to in
clauses (a) through (d) above, a "Registration Default"), the interest rate
borne by the Securities (except in the case of clause (c), in which case only
the Securities which have not been exchanged in the Exchange Offer) shall be
increased by an amount equal to one-quarter of one percent (0.25%) per annum
upon the occurrence of any Registration Default, which rate (as increased as
aforesaid) will increase by an additional one quarter of one percent (0.25%)
each 90-day period that such additional interest continues to accrue under any
such circumstance, with an aggregate maximum increase in the interest rate equal
to one percent (1%) per annum. Following the cure of all Registration Defaults
the accrual of additional interest will cease and the interest rate will revert
to the original rate. Upon (w) the filing of the Exchange Offer Registration
Statement after the 60-day period described in clause (a) above, (x) the
effectiveness of the Exchange Offer Registration Statement after the 120-day
period described in clause (b) above, (y) the consummation of the Exchange Offer
after the 150-day period or the effectiveness of a Shelf Registration Statement
after the 150-day period (or the 30-day period), as the case may be, described
in clause (c) above, or (z) after the period during which such Shelf
Registration Statement ceases to be effective or usable as described in clause
(d) above, and provided that none of the conditions set forth in clauses (a),
(b), (c) and (d) above continues to exist, a Registration Default will be deemed
to be cured.
2.6 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2.1 and
Section 2.2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2.1 and Section 2.2 hereof.
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3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof, (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply
in all respects with the requirements of Regulation S-T under the
Securities Act, and use its best 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 under applicable law 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 and
comply with the provisions of the 1933 Act applicable to them with
respect to the disposition of all Securities covered by each
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities, at least five days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method
selected by the Majority Holders participating in the Shelf
Registration, (ii) furnish to each Holder of Registrable Securities 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, including financial statements and schedules and,
if the Holder so requests, all exhibits in order to facilitate the
public sale or other disposition of the Registrable Securities; and
(iii) subject to the last paragraph of this Section 3, hereby consent
to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
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(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary
or advisable to enable each such Holder and underwriter to consummate
the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) quality as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), or (ii) take any
action which would subject it to general service of process or taxation
in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under
a Shelf Registration or any Participating Broker-Dealer who has
notified the Company that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if
requested by such Holder or Participating Broker-Dealer, confirm such
notice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for post-effective 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) in the case of a
Shelf Registration, 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 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, (v) of the happening of any event or
the discovery of any facts 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 the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be,
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(f) (A) in the case of the Exchange Offer Registration
Statement, (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution" which
section shall be reasonably acceptable to the Initial
Purchasers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with
respect to the potential
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"underwriter" status of any broker-dealer that holds Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities and that
will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the reasonable judgment of the
Initial Purchasers and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) subject to the last
paragraph of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto, by any person
subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, (iv) use
their best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus
delivery requirements of the 1933 Act for such period of time as
such Persons must comply with such requirements in order to
resell the Exchange Securities and (v) include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that
it is an underwriter within the meaning of the 1933 Act; and
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(B) in the case of any Exchange Offer Registration Statement,
the Company agrees to deliver to the Initial Purchasers on
behalf of the Participating Broker-Dealers upon the
effectiveness of the Exchange Offer Registration Statement (i)
an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP substantially in the
form attached hereto as Exhibit A, (ii) an officers' certificate
substantially in the form customarily delivered in a public
offering of debt securities and (iii) a comfort letter or
comfort letters in customary form if permitted by Statement on
Auditing Standards No. 72 of the American Institute of Certified
Public Accountants (or if such a comfort letter is not
permitted, an agreed upon procedures letter in customary form)
at least as broad in scope and coverage as the comfort letter or
comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Securities to the
Initial Purchasers;
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Securities copies of any
comment letters received from the SEC or any other request by the SEC
or any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities, and each underwriter, if any, without
charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements
and schedules (without documents incorporated therein by reference and
all exhibits thereto, unless requested);
(j) 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 or the underwriters, if any, may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Sections 3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof, use its best
efforts to prepare a supplement or post-effective amendment to the
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 or Participating
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Broker-Dealers, such Prospectus will not contain at the time of such
delivery 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 or will remain
so qualified;
(l) obtain a CUSIP number for all Exchange Securities not later
than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities in a form
eligible for deposit with the Depositary;
(m) (i) 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, (ii) 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 (iii) execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect 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;
(n) in the case of a Shelf Registration, enter into agreements
(including customary underwriting agreements) and take all other
customary and appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be
reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates
thereof (which opinions (in form, scope and substance) and
counsel shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in principal
amount of the Registrable Securities being sold) addressed to
each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the underwriters, if any, and use reasonable efforts to have
such letters addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified
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Public Accounts), such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings and such other matters as reasonably
requested by such selling Holders and any underwriters;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of
the Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the
extent required thereunder;
(o) in the case of a (i) Shelf Registration, or (ii) Prospectus
contained in an Exchange Offer pursuant to Section 2.1 which is
required to be delivered under the 1933 Act by an Participating
Broker-Dealer who seeks to sell Exchange Securities, make available for
inspection by representatives of the Holders of the Registrable
Securities and any such Participating Broker-Dealer, as the case may
be, and any underwriters participating in any disposition pursuant to a
Shelf Registration Statement and any counsel or accountant retained by
such Holders, Participating Broker Dealers or underwriters, all
pertinent financial and other records, pertinent corporate documents
and properties of the Company reasonably requested by any such persons,
and cause the respective officers, directors, employees, and any other
agents of the Company to supply all information reasonably requested by
any such representative, underwriter, counsel or accountant in
connection with a Registration Statement or Prospectus, and make such
representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
provided, that any such records, documents, properties and such
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such records,
documents, properties or information shall be kept confidential by any
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such representative, underwriter, counsel or accountant and shall be
used only in connection with such Registration Statement or Prospectus,
unless such information has become available (not in violation of this
Agreement) to the public generally or through a third party without an
accompanying obligation of confidentiality, and except that such
representative, underwriter, counsel or accountant shall have no
liability, and shall not be in breach of this provision, if disclosure
of such confidential information is made in connection with a court
proceeding or required by law, and the Company shall be entitled to
request that such representative, underwriter, counsel or accountant
sign a confidentiality agreement to the foregoing effect;
(p) (i) in the case of an Exchange Offer Registration Statement,
a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or
amendment or supplement to such Prospectus, provide copies of
such document to the Initial Purchasers and make such changes in
any such document prior to the filing thereof as the Initial
Purchasers may reasonably request, and make the representatives
of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf of
the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make
such changes in any such document prior to the filing thereof as
the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and make the
representatives of the Company available for discussion of such
document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders, or any underwriter;
(q) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are
then listed if requested by the Majority Holders; or if requested by
the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rerated by the appropriate
rating agencies, if so requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;
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(s) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of
Section 11 (a) of the 1933 Act and Rule 158 thereunder;
(t) cooperate and assist in any filings required to be made with
the NASD and, in the case of a Shelf Registration, in the performance
of any due diligence investigation by any underwriter and its counsel
(including any "qualified independent underwriter" that is required to
be retained in accordance with the rules and regulations of the NASD);
and
(u) upon consummation of an Exchange Offer, obtain a customary
opinion of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable Securities participating in the
Exchange Offer, and which includes an opinion that (i) the Company has
duly authorized, executed and delivered the Exchange Securities and the
related indenture, and (ii) each of the Exchange Securities and related
indenture constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the event that the Company fails to effect the Exchange Offer or
file any Shelf Registration Statement and maintain the effectiveness of any
Shelf Registration Statement as provided herein, the Company shall not file any
Registration Statement with respect to any securities (within the meaning of
Section 2(l) of the 0000 Xxx) of the Company other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
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In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Sections 3(e)(ii),
3(e)(iii), 3(e)(v) or 3(e)(vi) 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(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in such Holder's
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 shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Shelf Registration Statement
as a result of the happening of any event or the discovery of any facts, each of
the kind described in Sections 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof,
the Company shall be deemed to have used its best efforts to keep the Shelf
Registration Statement effective during such period of suspension provided that
the Company shall use its best efforts to file and have declared effective (if
an amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the Shelf
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.
4. Indemnification, Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter"), their
respective affiliates, and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
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(ii) 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 any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party, except to the extent otherwise expressly provided in
Section 4(c) hereof), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, such Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, further, that such indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Initial Purchaser, Holder or Underwriter (or any persons controlling such
Initial Purchaser, Holder or Underwriter) (i) from whom the person asserting
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the final Prospectus
(or the final Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Securities to such person in any case where the
Company complied with its obligations under Sections 3(c) and 3(f)(A)(ii) hereof
and any such untrue statement or omission or alleged untrue statement or
omission of a material fact contained in such preliminary prospectus (or any
amendment or supplement thereto) was corrected in the final Prospectus (or the
final Prospectus as amended or supplemented) or (ii) if it resulted from the use
of the Prospectus during a period when the use of the Prospectus has been
suspended in accordance with Section 2.4(b) or Sections 3(e)(ii), 3(e)(iii),
3(e)(v) and 3(e)(vi) hereof; provided, in each case, that Holders received prior
notice of such suspension .
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, and each of their respective directors and officers, and
each Person, if any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged
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untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company expressly for use in the Shelf Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days
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after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to, or insufficient to hold harmless, an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand, the
Holders on another hand, and the Initial Purchasers on another hand, from the
offering of the Securities, the Exchange Securities and the Registrable
Securities (taken together) included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand, the
Holders on another hand and the Initial Purchasers on another hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company from the offering of the
Securities, the Exchange Securities and the Registrable Securities (taken
together) included in such offering shall in each case be deemed to include the
proceeds received by the Company in connection with the offering of the
Securities pursuant to the Purchase Agreement. The parties hereto agree that any
underwriting discount or commission or reimbursement of fees paid to the Initial
Purchasers pursuant to the Purchase Agreement shall not be deemed to be a
benefit received by the Initial Purchasers in connection with the offering of
the Exchange Securities or Registrable Securities included in such offering.
The relative fault of the Company on the one hand, the Holders on
another hand, and the Initial Purchasers on another hand shall be determined by
reference to, among other things, whether any such 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 Company, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Initial Purchasers 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 above in this
Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or
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proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser 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.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement and each Person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 4 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A to the Purchase Agreement
and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
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5.2 No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement 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 rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
5.3 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 has 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
departure.
5.4 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 (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company,
initially at the Company's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two 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 under the
Indenture, at the address specified in such Indenture.
5.5 Successor 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 that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase 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, including
the restrictions on resale set forth in this Agreement
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and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder. Other than the foregoing
sentences, nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, firm or corporation, other than the Initial
Purchasers, the Holders, including Participating Broker-Dealers, each
underwriter who participates in an offering of Registrable Securities, their
respective affiliates, and the Company and their respective successors and the
controlling persons, directors, officers, employees, and agents referred to in
Section 4 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole benefit of the Initial Purchasers, the Holders and
the Company and the other persons referenced by the preceding sentences and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation.
5.7 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.
5.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DI GIORGIO CORPORATION
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Executive Vice President
and Chief Financial Officer
Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BT SECURITIES CORPORATION
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Pascal Maeter
-----------------------------------
Name: Pascal Maeter
Title: Vice President
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Exhibit A
FORM OF OPINION OF COUNSEL
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BT Securities Corporation
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: Di Giorgio Corporation 10% Senior Notes due 2007
Ladies and Gentlemen:
We have acted as counsel for Di Giorgio Corporation, a Delaware
corporation (the "Company"), in connection with the sale by the Company to the
Initial Purchasers (as defined below) of $155,000,000 aggregate principal amount
of 10% Senior Notes due 2007 (the "Notes") of the Company pursuant to the
Purchase Agreement dated June 13, 1997 (the "Purchase Agreement") among the
Company and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and BT Securities
Corporation (collectively, the "Initial Purchasers") and the filing by the
Company of an Exchange Offer Registration Statement (the "Registration
Statement") in connection with an Exchange Offer to be effected pursuant to the
Registration Rights Agreement (the "Registration Rights Agreement"), dated June
20, 1997 between the Company and the Initial Purchasers. This opinion is
furnished to you pursuant to Section 3(f)(B) of the Registration Rights
Agreement. Unless otherwise defined herein, capitalized terms used in this
opinion that are defined in the Registration Rights Agreement are used herein as
so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant to this opinion, we have assumed the completeness
and accuracy of, and are relying solely upon, the representations, warranties
and agreements of the Company and the Initial Purchasers set forth in the
Purchase Agreement and the statements set forth in certificates of public
officials and officers of the Company, without making any independent
investigation or inquiry with respect to the completeness or accuracy of such
representations, warranties, agreements or statements. This opinion is limited
to the laws of the United States of America and the laws of the State of
Delaware.
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Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the Prospectus
(other than the financial statements, notes or schedules thereto and other
financial data and supplemental schedules included therein or omitted therefrom
and the Form T-1, as to which we need express no opinion), comply as to form in
all material respects with the requirements of the 1933 Act and the applicable
rules and regulations promulgated under the 1933 Act.
2. We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers, employees and other
representatives of the Company and Deloitte & Touche LLP, the Company's
independent public accountants, during which the contents of the Registration
Statement and the Prospectus were discussed. We have not, however, independently
verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus. Based on our participation as
described above, nothing has come to our attention that would lead us to believe
that the Registration Statement (except for financial statements, notes and
schedules thereto and other financial data included therein as to which we make
no statement) at the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, notes and schedules thereto and other financial data included
therein, as to which we need make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented Prospectus was issued or
upon consummation of the Exchange Offer, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
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