Exhibit 4.9
CONFORMED COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 18, 1997
By and Among
DEL MONTE CORPORATION,
DEL MONTE FOODS COMPANY
and
BT SECURITIES CORPORATION,
BANKERS TRUST INTERNATIONAL PLC,
BANCAMERICA SECURITIES, INC.
and
BEAR, XXXXXXX & CO. INC.,
as Initial Purchasers
12 1/4% Senior Subordinated Notes due 2007
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TABLE OF CONTENTS
Page
1. Definitions................................................1
2. Exchange Offer.............................................4
3. Shelf Registration.........................................8
4. Additional Interest.......................................10
5. Registration Procedures...................................11
6. Registration Expenses.....................................19
7. Indemnification...........................................20
8. Rules 144 and 144A........................................23
9. Underwritten Registrations................................24
10. Miscellaneous.............................................24
(a) No Inconsistent Agreements...........................24
(b) Adjustments Affecting Registrable Notes..............24
(c) Amendments and Waivers...............................24
(d) Notices..............................................25
(e) Successors and Assigns...............................26
(f) Counterparts.........................................26
(g) Headings.............................................26
(h) Governing Law........................................26
(i) Severability.........................................26
(j) Securities Held by the Company, Holdings or
Their Respective Affiliates .........................27
(k) Third Party Beneficiaries............................27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
dated as of April 18, 1997, by and between DEL MONTE CORPORATION,
a New York corporation (the "Company") and DEL MONTE FOODS
COMPANY, a Maryland corporation ("Holdings"), on the one hand,
and BT SECURITIES CORPORATION, BANKERS TRUST INTERNATIONAL PLC,
BANCAMERICA SECURITIES, INC. and BEAR, XXXXXXX & CO. INC. (the
"Initial Purchasers") on the other hand.
This Agreement is entered into in connection with the
Purchase Agreement, dated as of April 15, 1997, by and among the
Company, Holdings and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the
Initial Purchasers of $150,000,000 aggregate principal amount of
its 12 1/4% Senior Subordinated Notes due 2007 (the "Notes") to
be guaranteed by Holdings. The Notes will be issued pursuant to
an Indenture, dated as of April 18, 1997, among the Company,
Holdings and Marine Midland Bank, as trustee (the "Trustee"). In
order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and Holdings have agreed to provide the
registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and any subsequent holder or holders of
the Notes. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligations to purchase the
Notes under the Purchase Agreement.
The Notes are being issued and sold in connection with
the recapitalization of Holdings pursuant to an Agreement and
Plan of Merger, dated as of February 21, 1997, and amended and
restated as of April 14, 1997, entered into by and among
Holdings, TPG Partners L.P. and TPG Shield Acquisition
Corporation.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall
have the following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to (i) the Exchange
Offer Registration Statement, the 135th day after the Issue Date
and (ii) any Shelf Registration Statement, the 60th day after the
Filing Date with respect thereto.
Effectiveness Period: See Section 3(a) hereof.
Effective Time: See the introductory paragraphs hereto.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a)
hereof.
Filing Date: (A) If no Registration Statement has been
filed by the Company and Holdings pursuant to this Agreement, the
60th day after the Issue Date; and (B) in any other case (which
may be applicable notwithstanding the consummation of the
Exchange Offer), the 45th day after the delivery of a Shelf
Notice.
Holder: Any holder of a Registrable Note or Registrable
Notes.
Holdings: See the introductory paragraphs hereto.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person See Section 7(c) hereof.
Indenture: See the introductory paragraphs hereto.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: April 18, 1997, the date of original issuance
of the Notes.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participant Broker-Dealer: See Section 2(b) hereof.
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Person: An individual, corporation, partnership, joint
venture, trust, unincorporated association, union, business
association, firm or governmental agency or political subdivision
thereof.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any
Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon Rule
430A under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented
by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs
hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note
as to which Section 2(c) (iv) hereof is applicable upon original
issuance and at all times subsequent thereto and each Private
Exchange Note upon original issuance thereof and at all times
subsequent thereto, until (i) a Registration Statement (other
than, with respect to any Exchange Note as to which Section 2(c)
(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange
Note has been declared effective by the SEC and such Note,
Exchange Note or such Private Exchange Note, as the case may be,
has been disposed of in accordance with such effective
Registration Statement, (ii) such Note has been exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange
Notes that may be resold without restriction under the federal
securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note, as the case may be, may be resold without
restriction pursuant to Rule 144 under the Securities Act.
Registration Statement: Any registration statement of
the Company and Holdings, that covers any of the Notes, the
Exchange Notes or the Private Exchange Notes filed with the SEC
under the Securities Act, including the Prospectus, amendments
and supplements to such registration statement, including
cost-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and sales of securities
made in compliance therewith
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resulting in offers and sales by subsequent holders that are not
affiliates of the Company or Holdings of such securities being
free of the registration and prospectus delivery requirements of
the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(b) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement
relating to a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten offering: A
registration with the SEC in which securities of the Company are
sold to an underwriter for reoffering to the public.
2. Exchange Offer
(a) To the extent not prohibited by applicable law or
applicable interpretation of the staff of the Division of
Corporation Finance of the SEC, the Company and Holdings shall
file with the SEC, no later than the Filing Date, a Registration
Statement (the "Exchange Offer Registration Statement") on an
appropriate registration form with respect to a registered offer
(the "Exchange Offer") to exchange any and all of the Registrable
Notes for a like aggregate principal amount of notes (the
"Exchange Notes") of the Company guaranteed by Holdings that are
identical in all material respects to the Notes except that the
Exchange Notes shall contain no restrictive legend thereon. The
Exchange Offer shall comply in all material respects with all
applicable rules and regulations under the Exchange Act and other
applicable laws. The Company and Holdings shall use their
respective best efforts to (x) cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 30 days (or longer if required
by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; and (z)
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consummate the Exchange Offer on or prior to the 60th day
following the date on which the Exchange Offer Registration
Statement is declared effective by the SEC. If, after the
Exchange Offer Registration Statement is initially declared
effective by the SEC, the Exchange Offer or the issuance of the
Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, the Exchange Offer Registration
Statement shall be deemed not to have become effective for
purposes of this Agreement unless and until such stop order,
injunction or other order or requirement is stayed, lifted or
otherwise reversed and the Exchange Offer is permitted to
proceed.
Each Holder that participates in the Exchange Offer
will be required to represent that any Exchange Notes to be
received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange
Offer such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, and
that such Holder is not an affiliate of the Company or Holdings
within the meaning of the Securities Act, and, if it is a
Participating Broker-Dealer, it acknowledges that it will deliver
a prospectus prepared by the Company and Holdings in accordance
with the terms of this Agreement in connection with any resale of
any Exchange Notes received in respect of such Notes pursuant to
the Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2, the provisions of this Agreement shall
continue to apply, solely with respect to Registrable Notes that
are Private Exchange Notes, Exchange Notes as to which Section
2(c) (iv) is applicable and Exchange Notes held by Participating
Broker-Dealers, and the Company and Holdings shall have no
further obligation to register Registrable Notes (other than
Private Exchange Notes and other than in respect of any Exchange
Notes as to which clause 2(c) (iv) hereof applies) pursuant to
Section 3 hereof. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement.
(b) The Company and Holdings shall include within the
Prospectus contained in the Exchange Offer Registration Statement
a section entitled "Plan of Distribution," reasonably acceptable
to the Holders, which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions
or policies represent the prevailing views of the staff of the
SEC. Such "Plan of Distribution" section shall also expressly
permit, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities
Act, including, to the extent permitted by applicable policies
and regulations of the SEC, all Participating Broker-Dealers, and
include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
The Company and Holdings shall use their respective
reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the
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Prospectus contained therein in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of
time as is necessary to comply with applicable law in connection
with any resale of the Exchange Notes covered thereby; provided,
however, that such period shall not exceed 180 days after such
Exchange Offer Registration Statement is declared effective (or
such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any
Initial Purchaser holds any Notes acquired by it that have, or
that are reasonably likely to be determined to have, the status
of an unsold allotment in an initial distribution, or any Holder
is not entitled to participate in the Exchange Offer, the Company
and Holdings upon the request of any such Holder shall
simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to any such Holder, in exchange
(the "Private Exchange") for such Notes held by any such Holder,
a like principal amount of notes (the "Private Exchange Notes")
of the Company guaranteed by Holdings that are identical in all
material respects to the Exchange Notes (except that they may
bear a customary legend with respect to restrictions on
transfer). The Company and Holdings shall use their best efforts
to cause the Private Exchange Notes to bear the same CUSIP number
as the Exchange Notes. Notwithstanding the foregoing, the Company
and Holdings shall not be obligated to issue and deliver the
Private Exchange Notes if it is not possible for the Company and
Holdings, notwithstanding their best efforts, to cause the
Private Exchange Notes to bear the same CUSIP number as the
Exchange Notes. In the event that the Private Exchange Notes
cannot, for any reason, bear the same CUSIP number as the
Exchange Notes, the Company and Holdings will, as soon as the
Private Exchange Notes become freely transferable and are no
longer required to bear any restrictive legend, issue and deliver
the Private Exchange Notes and use their best efforts to cause
the Private Exchange Notes to bear the same CUSIP number as the
Exchange Notes. The Private Exchange Notes shall, in any event,
be issued pursuant to the same indenture as the Exchange Notes.
Interest on the Exchange Notes and the Private
Exchange Notes will accrue from (A) the later of (i) the last
interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or (ii) if the Notes are
surrendered for exchange on a date subsequent to the record date
for an interest payment date to occur on or after the date of
such exchange and as to which interest will be paid, the date of
such interest payment or (B) if no interest has been paid on the
Notes, from the date of the original issuance of the Notes.
In connection with the Exchange Offer, the Company and
Holdings shall:
(1) mail, or cause to be mailed, to each Holder
entitled to participate in the Exchange Offer a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30
days after the date that notice of the Exchange Offer is
mailed to Holders (or longer if required by applicable
law);
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(3) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City
of New York;
(4) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall remain
open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange
Offer and the Private Exchange, if any, the Company and Holdings
shall:
(1) accept for exchange all Registrable Notes validly
tendered and not validly withdrawn pursuant to the Exchange
Offer and the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder, in respect of Notes validly
tendered and not validly withdrawn pursuant to the Exchange
Offer, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to such Notes of
such Holder.
The Exchange Offer and the Private Exchange shall not
be subject to any conditions, other than that (i) the Exchange
Offer or Private Exchange, as the case may be, does not violate
applicable law or any applicable interpretation of the staff of
the SEC, (ii) no action or proceeding shall have been instituted
or threatened in any court or by any governmental agency which
might materially impair the ability of the Company or Holdings to
proceed with the Exchange Offer or the Private Exchange, and no
material adverse development shall have occurred in any existing
action or proceeding with respect to the Company or Holdings and
(iii) all governmental approvals shall have been obtained, which
approvals the Company or Holdings deems necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes
shall be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture and which, in
either case, has been qualified under the TIA or is exempt from
such qualification and shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that
the Exchange Notes, the Private Exchange Notes and the Notes
shall vote and consent together on all matters as one class and
that none of the Exchange Notes, the Private Exchange Notes or
the Notes will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law or in
currently prevailing interpretations of the staff of the SEC, the
Company and Holdings are not permitted to effect the Exchange
Offer, (ii) the Exchange Offer is not consummated within 180 days
of the Issue Date, (iii) the
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Representative or any holder of Private Exchange Notes so
requests in writing to the Company at any time after the
consummation of the Exchange Offer, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may
be sold without restriction under the federal securities laws
(other than due solely to the status of such Holder as an
affiliate of the Company or Holdings within the meaning of the
Securities Act) and so notifies the Company within 30 days after
such Holder first becomes aware of such restrictions, in the case
of each of clauses (i) to and including (iv) of this sentence,
then the Company and Holdings shall promptly deliver to the
Holders and the Trustee written notice thereof (the "Shelf
Notice") and shall file a Shelf Registration pursuant to Section
3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as
contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company and Holdings shall
file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Notes not permitted to be exchanged in the
Exchange Offer in accordance with the terms of this Agreement,
Private Exchange Notes and Exchange Notes as to which Section
2(c) (iv) is applicable (the "Initial Shelf Registration"). The
Company and Holdings shall use their respective best efforts to
file with the SEC the Initial Shelf Registration on or before the
applicable Filing Date. The Initial Shelf Registration shall be
on Form S-l or another appropriate form permitting registration
of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or
more underwritten offerings). Neither the Company nor Holdings
shall permit any securities other than the Registrable Notes to
be included in the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below).
The Company and Holdings shall use their respective
best efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act on or prior to the
Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date
which is three years from the Issue Date, subject to extension
pursuant to the last paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all
Registrable Notes covered by the Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial
Shelf Registration or, if applicable, a Subsequent Shelf
Registration; provided, however, that the Effectiveness Period in
respect of the Initial Shelf Registration shall be extended to
the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the
Securities Act and as otherwise provided herein and shall be
subject to reduction to the extent that the applicable provisions
of Rule 144 (k) are amended or revised to reduce the three year
holding period set forth therein.
No holder of Registrable Notes may include any of its
Registrable Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such holder furnishes to
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the Company and Holdings in writing, within 15 business days
after receipt of a request therefor, such information as the
Company and Holdings may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or
preliminary prospectus included therein. No holder of Registrable
Notes shall be entitled to Additional Interest pursuant to
Section 4 hereof unless and until such holder shall have provided
all such reasonably requested information. Each holder of
Registrable Notes as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company and
Holdings all information required to be disclosed in order to
make information previously furnished to the Company and Holdings
by such Holder not materially misleading.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities
registered thereunder), the Company and Holdings shall use their
respective best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend the
Initial Shelf Registration in a manner to obtain the withdrawal
of the order suspending the effectiveness thereof, or, if in the
reasonable judgment of the Representative it is likely to
accomplish the desired effect, file an additional Shelf
Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration") . If a Subsequent Shelf
Registration is filed, the Company and Holdings shall use their
respective best efforts to cause the Subsequent Shelf
Registration to be declared effective under the Securities Act as
soon as practicable after such filing and to keep such subsequent
Shelf Registration continuously effective for a period equal to
the number of days in the Effectiveness Period less the aggregate
number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously
effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company and
Holdings shall promptly supplement and amend any Shelf
Registration if required by the rules, regulations or
instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter of such Registrable
Notes.
(d) Withdrawal of Stop Orders. If the Shelf
Registration ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the sale
of all of the securities registered thereunder), the Company and
Holdings shall use their respective best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof.
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4. Additional Interest
(a) The Company and Holdings and the Initial Purchasers
agree that the Holders will suffer damages if the Company or
Holdings fail to fulfill their respective obligations under
Section 2 or Section 3 hereof and that it would not be feasible
to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay, as liquidated damages,
additional interest on the Notes ("Additional Interest") under
the circumstances and to the extent set forth below (each of
which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed on or
prior to the Filing Date applicable thereto (i.e., 60 days after
the Issue Date) or (B) notwithstanding that the Company and
Holdings have consummated or will consummate the Exchange Offer,
the Company and Holdings are required to file a Shelf
Registration and such Shelf Registration is not filed on or prior
to the Filing Date applicable thereto, then, commencing on the
day after any such Filing Date, Additional Interest shall accrue
on the principal amount of the Notes at a rate of 0.50% per annum
for the first 90 days immediately following such applicable
Filing Date, and such Additional Interest rate shall increase by
an additional 0.50% per annum at the beginning of each subsequent
90-day period; or
(ii) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the Effectiveness Date
applicable thereto (i.e., 135 days after the Issue Date) or (B)
notwithstanding that the Company and Holdings have consummated or
will consummate the Exchange Offer, the Company and Holdings are
required to file a Shelf Registration and such Shelf Registration
is not declared effective by the SEC on or prior to the
Effectiveness Date applicable to such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Notes at a
rate of 0.50% per annum for the first 90 days immediately
following the day after such Effectiveness Date, and such
Additional Interest rate shall increase by an additional 0.50%
per annum at the beginning of each subsequent 90-day period; or
(iii) if (A) the Company and Holdings have not
exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to
the 45th day after the date on which the Exchange Offer
Registration Statement relating thereto was declared effective or
(B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at
any time during the Effectiveness Period, then Additional
Interest shall accrue on the principal amount of the Notes at a
rate of 0.50% per annum for the first 90 days commencing on the
(x) 46th day after such effective date, in the case of (A) above,
or (y) the day such Shelf Registration ceases to be effective in
the case of (B) above, and such Additional Interest rate shall
increase by an additional 0.50% per annum at the beginning of
each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes
may not exceed in the aggregate 1.0% per annum; provided,
further, however, that (1) upon the filing of the applicable
Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i)
above of this Section 4), (2) upon the effectiveness of the
Exchange Offer
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Registration Statement or the applicable Shelf Registration
Statement as required hereunder (in the case of clause (ii) of
this Section 4), or (3) upon the exchange of the Exchange Notes
for all Notes tendered (in the case of clause (iii) (A) of this
Section 4), or upon the effectiveness of the applicable Shelf
Registration Statement which had ceased to remain effective (in
the case of (iii) (B) of this Section 4), Additional Interest on
the Notes in respect of which such events relate as a result of
such clause (or the relevant subclause thereof), as the case may
be, shall cease to accrue.
(b) The Company and Holdings shall notify the Trustee
within one business day after each and every date on which an
event occurs in respect of which Additional Interest is required
to be paid (an "Event Date"). Any amounts of Additional Interest
due pursuant to (a) (i), (a) (ii) or (a) (iii) of this Section 4
will be payable in cash semi-annually on each April 1 and October
1 (to the holders of record on the March 15 and September 15
immediately preceding such dates), commencing with the first such
date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months and, in the case of a partial month, the actual
number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration
Statement pursuant to Sections 2 or 3 hereof, the Company and
Holdings shall effect such registrations to permit the sale of
the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the
Company and Holdings hereunder the Company and Holdings shall:
(a) Prepare and file with the SEC prior to the
applicable Filing Date, a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3
hereof, and use their best efforts to cause each such
Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if
(1) such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company and Holdings
shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents
(including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be
filed (in each case at least five business days prior to
such filing, or such later date as is reasonable under the
circumstances). The Company and Holdings shall not file any
Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in
aggregate principal amount of the
11
Registrable Notes covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration
Statement or Exchange Offer Registration Statement, as the
case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness
Period or the Applicable Period or until consummation of
the Exchange Offer, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then
in force) promulgated under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange
Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company and Holdings shall be deemed not to
have used their best efforts to keep a Registration
Statement effective during the Effective Period or the
Applicable Period, as the case may be, relating thereto if
the Company or Holdings voluntarily takes any action that
would result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless (i)
such action is required by applicable law or (ii) the
Company and Holdings comply with this Agreement, including
without limitation, the provisions of Section 5(k) or the
last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period
relating thereto from whom the Company and Holdings have
received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any event
within two business days of senior management becoming
aware of any event specified in clause (i) through (vi) of
the paragraph 5(c)), and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect
to a Registration Statement or any post-effective
amendment, when the same has become effective under the
Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, at the
sole expense of the Company and Holdings, one conformed
copy of such Registration Statement or post-effective
amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by
reference therein and exhibits), (ii) of the issuance by
the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the.
initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities
Act to be delivered in connection with sales of the
Registrable Notes or resales
12
of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Company or Holdings
contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m) hereof cease to be
true and correct in all material respects, (iv) of the
receipt by the Company or Holdings of any notification with
respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of
the Registrable Notes or the Exchange Notes to be sold by
any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information
becoming known that makes any statement made in such
Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that
requires the making of any changes in or amendments or
supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading, and (vi) of any of the Company's
or Holdings' determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use
its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its best efforts to obtain the
withdrawal of any such order at the earliest possible date.
(e) If a Shelf Registration is filed pursuant to
Section 3 and if requested by the Initial Purchasers or the
Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an
underwritten offering or by any Participating
Broker-Dealer, (i) promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if
any), such Holders, any Participating Broker-Dealer or
counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as
practicable after the Company or Holdings has received
notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration
Statement, to the extent required by law or reasonably
requested by the Initial Purchasers or such Holders.
13
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period,
furnish to each selling Holder of Registrable Notes and to
each such Participating Broker-Dealer who so requests and
to counsel and each managing underwriter, if any, at the
sole expense of the Company and Holdings, one conformed
copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if
requested, one copy of all documents incorporated or deemed
to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period,
deliver to each selling Holder of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be,
their respective counsel, and the underwriters, if any, at
the sole expense of the Company and Holdings, as many
copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the
Company and Holdings hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each
of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in
connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes
or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their respective best efforts to
register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter
or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or
exemption from such registration or qualification) of such
Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer,
or the managing underwriter or underwriters reasonably
request in writing; provided, however, that where Exchange
Notes held by Participating Broker-Dealers or Registrable
Notes are offered other than through an underwritten
offering, the Company and Holdings agree to cause their
counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed
pursuant to this Section 5 (h); keep each such registration
or qualification (or exemption therefrom) effective during
the period such Registration Statement is required to be
kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the
14
disposition in such jurisdictions of the Exchange Notes
held by Participating Broker-Dealers or the Registrable
Notes covered by the applicable Registration Statement;
provided, however, that neither the Company nor Holdings
shall be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of
process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in excess of a
nominal dollar amount in any such jurisdiction where it is
not then so subject.
(i) If a Shelf Registration is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of
Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any
restrictive legends (other than any customary legend
required by the applicable depositary or any or any legend
that would be required by an Exchange Note held by an
affiliate of the Company or Holdings) and shall be in a
form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such
denominations (subject to the terms of the Indenture) and
registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) Use their respective best efforts to cause the
Registrable Notes covered by the Registration Statement to
be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's
business, in which case the Company and Holdings will
cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon
the occurrence of any event contemplated by paragraph 5(c)
(v) or 5(c) (vi) hereof, as promptly as practicable prepare
and (subject to Section 5(a) hereof) file with the SEC, at
the sole expense of the Company and Holdings, a supplement
or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will not
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, in the light of
the circumstances under which they were made, not
misleading.
15
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide
the Trustee with certificates for the Registrable Notes or
Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company and (ii) provide
a CUSIP number for the Registrable Notes or Exchange Notes,
as the case may be.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter
into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the
Notes in form and substance reasonably satisfactory to the
Company and Holdings and take all such other actions as are
reasonably requested by the managing underwriter or
underwriters in order to facilitate the registration or the
disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties
to, and covenants with, the underwriters with respect to
the business of the Company, Holdings and their respective
subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested in form
and substance reasonably satisfactory to the Company and
Holdings; (ii) obtain the written opinions of counsel to
the Company and Holdings and written updates thereof in
form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters) addressed to the
underwriters covering the matters customarily covered in
opinions to underwriters in primary underwritten offerings
and as are reasonably requested by the managing underwriter
or underwriters; (iii) use its best efforts to obtain "cold
comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified
public accountants of the Company and Holdings (and, if
necessary, any other independent certified public
accountants of any subsidiary of the Company or Holdings or
of any business acquired by the Company or Holdings for
which financial statements and financial data are, or are
required to be, included or incorporated by reference in
the Registration Statement), addressed to the underwriter,
such letters to be in customary form and covering matters
of the type customarily covered in "comfort" letters in
connection with primary underwritten offerings of debt
securities similar to the Notes and as are reasonably
requested by the managing underwriter or underwriters as
permitted by the Statement on Auditing Standards No. 72;
and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and
procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures acceptable
to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement
and the managing underwriter or underwriters or agents, if
any. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the
Securities Act by any Participating
16
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold, or
each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate
documents and instruments of the Company, Holdings and
their respective subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable the Inspectors
to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the
Company, Holdings and their respective subsidiaries to
supply all information reasonably requested by any such
Inspector in connection with such Registration Statement
and Prospectus. Each Inspector shall agree in writing that
it will keep the Records and any such information
confidential and that it will not disclose any of the
Records or any such information unless (i) the disclosure
of such Records is necessary, in the reasonable written
opinion of counsel to such Inspector, to avoid or correct a
misstatement or omission in such Registration Statement or
Prospectus, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) disclosure of such
information is necessary or advisable, in the reasonable
written opinion of counsel for any Inspector, in connection
with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or
involving this Agreement or the Purchase Agreement, or any
transactions contemplated hereby or thereby or arising
hereunder or thereunder, or (iv) the information in such
Records has been made generally available to the public.
Each selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to agree that
all Records and any such information obtained by it as a
result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market
transactions in the securities of the Company or Holdings
or any other entity unless and until such is made generally
available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer
will be required to further agree that it will, upon
learning that disclosure of such Records or any such
information is sought in a court of competent jurisdiction,
give notice to the Company and Holdings and allow the
Company and Holdings to undertake appropriate action to
prevent disclosure of the Records or any such information
deemed confidential at the Company's and Holdings' expense.
(o) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause
the Indenture or the trust indenture provided for in
Section 2(a) hereof, as the case may be, to be qualified
under the TIA not later than the effective date of the
first Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the
Registrable Notes to effect such changes to such indenture
as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use
all reasonable efforts to cause such trustee to execute,
all documents
17
as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely
manner.
(p) Comply with all applicable rules and regulations
of the SEC and make generally available to their respective
securityholders consolidated earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of
any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company
and Holdings after the effective date of a Registration
Statement, which statements shall cover said 12-month
periods.
(q) If the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by
Holders to the Company (or to such other Person as directed
by the Company) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Company
shall xxxx, or cause to be marked, on such Registrable
Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(r) Use their respective best efforts to cause the
Registrable Notes covered by a Registration Statement or
the Exchange Notes, as the case may be, to be rated by each
of the rating agencies which rated the Notes at the time of
their initial issuance, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the Exchange
Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(s) Cooperate, to the extent reasonable, with each
seller of Registrable Notes covered by any Registration
Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their
respective counsel in connection with any filings required
to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use their respective best efforts to take all
other steps reasonably necessary to effect the registration
of the Exchange Notes and/or Registrable Notes covered by a
Registration Statement contemplated hereby.
The Company and Holdings may require each seller of
Registrable Notes as to which any registration is being effected
to furnish to the Company and Holdings such information regarding
such seller and the distribution of such Registrable Notes as the
Company and Holdings may, from time to time, reasonably request.
The Company and Holdings may exclude from any such registration
the Registrable Notes of any seller so long as such seller fails
to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the
Company and
18
Holdings all information required to be disclosed in order to
make the information previously furnished to the Company and
Holdings by such seller not materially misleading.
Each Holder of Registrable Notes and each
Participating Broker-Dealer agrees by its acquisition of such
Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company or Holdings of the
happening of any event of the kind described in Section 5(c) (ii)
, 5(c) (iv) , 5(c) (v) , or 5(c) (vi) hereof, such Holder or
Participating Broker-Dealer will forthwith discontinue
disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold
by such Holder or Participating Broker-Dealer, as the case may
be, until such Holder's or Participating Broker-Dealer's receipt
of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in
writing (the "Advice") by the Company and Holdings that the use
of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto. In the event
that the Company or Holdings shall give any such notice, each of
the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and
including the date of the giving of such notice to and including
the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of
or compliance with this Agreement by the Company and Holdings
shall be borne by the Company and Holdings whether or not the
Exchange Offer Registration Statement or any Shelf Registration
Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the
eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the
holders of Registrable Notes are located, in the case of the
Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, if any, including, without limitation,
expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses if the printing of
prospectuses is reasonably requested by the managing underwriter
or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in
any Registration Statement or in respect of Exchange Notes to be
sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the
Company and Holdings and, in the case of a Shelf Registration,
reasonable and documented fees and disbursements of one special
counsel for all of the sellers of Registrable Notes (exclusive of
19
any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants
referred to in Section 5(m) (iii) hereof (including, without
limitation, the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Company and Holdings
desire such insurance, (vii) fees and expenses of all other
Persons retained by the Company and Holdings, (viii) internal
expenses of the Company and Holdings (including, without
limitation, all salaries and expenses of officers and employees
of the Company and Holdings performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the fees and
expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the
obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement.
7. Indemnification
(a) The Company and Holdings, jointly and severally,
agree to indemnify and hold harmless each Holder of Registrable
Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, the officers, directors, employees
and agents of each such Person, and each Person, if any, who
controls any such Person within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including, without
limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any
claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company
or Holdings shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out
of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the
Prospectus in the light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by, arise out of or are based
upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with
information relating to any Participant furnished to the Company
and Holdings in writing by such Participant expressly for use
therein; provided, however, that neither the Company nor Holdings
will be liable if such untrue statement or omission or alleged
untrue statement or omission was contained or made in any
preliminary prospectus and corrected in the final Prospectus or
any amendment or supplement thereto and any such loss, liability,
claim, or damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any
Person who purchased Registrable Notes or Exchange Notes which
are the subject thereof from such Participant and it is
established in the related proceeding that such Participant
failed to deliver or provide a copy of the final Prospectus (as
amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange
Notes sold to such Person, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was
a result of noncompliance by the Company or Holdings with Section
5 of this Agreement.
20
(b) Each Participant agrees, severally and not jointly,
to indemnify and hold harmless the Company, Holdings and their
respective directors, their respective officers who sign the
Registration Statement and each Person who controls the Company
or Holdings within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and Holdings to each
Participant, but only with reference to information relating to
such Participant furnished to the Company and Holdings in writing
by such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The liability of any Participant
under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall
be brought or asserted against any Person in respect of which
indemnity may be sought pursuant to either of the two preceding
paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Persons against whom such indemnity may be sought (the
"Indemnifying Persons") in writing, and the Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Persons
may reasonably designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure
to so notify the Indemnifying Persons shall not relieve any of
them of any obligation or liability which any of them may have
hereunder or otherwise except to the extent it is materially
prejudiced by such failure. In any such proceeding, any
Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the
Indemnifying Persons and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Persons
shall have failed within a reasonable period of time to retain
counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both any Indemnifying Person and the
Indemnified Person or any affiliate thereof and representation of
both parties by the same counsel would be inappropriate due to
actual or potential conflicting interests between them. It is
understood that, unless there exists a conflict among Indemnified
Persons, the Indemnifying Persons shall not, in connection with
such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same
general allegations, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed promptly as they are incurred. Any such separate firm
for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a
majority in interest of Registrable Notes and Exchange Notes sold
by all such Participants and any such separate firm for the
Company, Holdings and their respective directors, their
respective officers and such control Persons of the Company or
Holdings shall be designated in writing by the Company and
Holdings and shall be reasonably acceptable to the Holders. The
Indemnifying Persons shall not be liable for any settlement of
any proceeding effected without their prior written consent
(which consent shall not be unreasonably withheld or delayed),
but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to
this Agreement, each of the Indemnifying persons agrees
21
to indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and
expenses actually incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance
with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any
settlement effected without its consent pursuant to this sentence
if the Indemnifying Person is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Persons (which
consent shall not be unreasonably withheld or delayed), effect
any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder
by such Indemnified Person, unless such settlement (A) includes
an unconditional written release of such Indemnified Person, in
form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter
of such proceeding and (B) does not include any statement as to
an admission of fault, culpability or failure to act by or on
behalf of such Indemnified Person.
(d) If the indemnification provided for in clauses (a)
and (b) of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from
the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the
Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the
statements or omissions or alleged statements or omissions that
resulted in such losses claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the
Company and Holdings on the one hand and the Participants on the
other shall be deemed to be in the same proportion as the total
proceeds from the offering (net of discounts and commissions but
before deducting expenses) of the Notes received by the Company,
as set forth in the table on the cover page of the Offering
Memorandum dated April 15, 1997 in respect of the sale of the
Notes, bears to the total proceeds received by such Participant
from the sale of Registrable Notes or Exchange Notes, as the case
may be. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or Holdings on the one hand or such Participant or
such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information
and opportunity to
22
correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if the amount of any contribution pursuant to this
Section 7 was determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as
a result of the losses, claims, damages, judgments, liabilities
and expenses referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred
by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant be
required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes, as the case may be, exceeds
the amount of any damages that such Participant has otherwise
been required to pay or has paid 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 7 shall be
paid by the Indemnifying Party to the Indemnified Party as such
losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company
and Holdings set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation
made by or on behalf of any Holder or any person who controls a
Holder, the Company or Holdings and their respective directors,
officers, employees or agents or any person controlling the
Company or Holdings, and (ii) any termination of this Agreement.
(g) The indemnity and contribution agreements contained
in this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
8. Rules 144 and 144A
Each of the Company and Holdings covenants and agrees
that, so long as Registrable Notes remain outstanding, it will
file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner in accordance
with the requirements of the Securities Act and the Exchange Act
and, if at any time the Company or Holdings is not permitted to
file such reports, the Company or Holdings, as the case may be,
will, upon the request of any Holder or beneficial owner of
Registrable Notes, make publicly available annual reports and
such information, documents and other reports of the type
specified in Sections 13 and 15(d) of the Exchange Act. Each of
the Company and Holdings further covenants for so long as any
Registrable Notes
23
remain outstanding, to make available to any Holder or beneficial
owner of Registrable Notes in connection with any sale thereof
and any prospective purchaser of such Registrable Notes from such
Holder or beneficial owner the information required by Rule
144A(d) (4) under the Securities Act in order to permit resales
of such Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Holders of
a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably
acceptable to the Company and Holdings.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder's Registrable Notes 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.
10. Miscellaneous
(a) No Inconsistent Agreements. Neither the Company nor
Holdings has entered into, and neither will enter into, any agreement
with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of any of the Company's or Holdings' other issued and
outstanding securities. As of the date hereof, neither the
Company nor Holdings has entered into and will not enter into any
agreement with respect to any of its securities which will grant
to any Person piggy-back registration rights with respect to any
Registration Statement required to be filed by the Company and
Holdings pursuant to this Agreement.
(b) Adjustments Affecting Registrable Notes. Neither
the Company nor Holdings shall, directly or indirectly, take any
action with respect to the Registrable Notes as a class that
would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may
not be given, otherwise than with the prior written consent of
(I) the Company and Holdings and (II) (A) the Holders of not less
than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the
participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all
participating Broker-Dealers; provided, however, that Section 7
and this Section 10(c) may not be amended, modified or
24
supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any person who was a
Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any
Registration Statement) affected by any such amendment,
modification or supplement. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold
pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of
other Holders of Registrable Notes may be given by Holders of at
least a majority in aggregate principal amount of the Registrable
Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other
communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of
such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the
Indenture, with a copy in like manner to the Initial
Purchasers as follows:
BT Securities Corporation,
As representative of the Initial Purchasers
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Xx., Esq.
(ii) if to the Initial Purchasers, at the address
specified in Section 10 (d) (1);
25
(iii) if to the Company or Holdings, to the Company at
the address as follows:
Del Monte Corporation
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx Chief Financial Officer
with a copy to:
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Vice President-Legal Affairs
Facsimile No.: (000) 000-0000
and to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; one business day after being timely
delivered to a next-day air courier; and upon receiving
confirmation receipt by the addressee, if sent by facsimile.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address and in the manner
specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns
of each of the parties hereto, the Holders and the Participating
Broker-Dealers, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
26
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company, Holdings or Their
Respective Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company,
Holdings or any of their respective affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable
Notes and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement, and this Agreement may be
enforced by such Persons.
27
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
DEL MONTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name:
Title:
DEL MONTE FOODS COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name:
Title:
BT SECURITIES CORPORATION,
as Initial Purchaser
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
BANCAMERICA SECURITIES, INC.,
as Initial Purchaser
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Managing Director
BEAR, XXXXXXX & CO. INC.
as Initial Purchaser
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name:
Title:
BANKERS TRUST INTERNATIONAL PLC
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
