Exhibit 4d
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of August 28, 2001, is by
and among IMPERIAL SUGAR COMPANY, a Texas corporation (the "Company"), and the
other parties listed on the signature pages hereto (together with their
successors and assigns, the "Holders").
This Agreement is being entered into in connection with the Second
Amended and Restated Joint Plan of Reorganization under Chapter 11 of the
Bankruptcy Code (the "Plan"). The Plan provides for, among other things, the
issuance of Common Stock (defined below) to the Holders who are Affiliates
(defined below) of the Company.
The parties hereto desire to provide certain registration rights to the
Holders with respect to the shares of Common Stock.
Accordingly, the parties hereto agree as follows:
1. Definitions
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Affiliate" means, at any time, a Person that directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, the Company. As used in this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means any shares of common stock, without par value, of
the Company now or hereafter authorized to be issued, and any and all securities
of any kind whatsoever of the Company which may be issued on or after the date
hereof in respect of, or in exchange for, shares of Common Stock pursuant to a
merger, consolidation, stock split, reverse stock split, stock dividend,
recapitalization of the Company or otherwise.
"Company" has the meaning set forth in the preamble of this Agreement.
"Electing Holder" means any Holder of Registrable Shares that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 2.1(b) in connection with the Shelf Registration
Statement to sell Registrable Shares covered by such Shelf Registration
Statement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
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"Holder Indemnitee" has the meaning set forth in Section 2.5(a) of this
Agreement.
"Holders" has the meaning set forth in the preamble of this Agreement.
"Inspectors" has the meaning set forth in Section 2.4 of this
Agreement.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
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hereto.
"Person" means a corporation, an association, a partnership, limited
liability company, an organization, a business, a trust, an individual, or any
other entity or organization, including a government or political subdivision or
an instrumentality or agency thereof.
"Plan" has the meaning set forth in the introductory paragraphs of this
Agreement.
"Records" has the meaning set forth in Section 2.4 of this Agreement.
"Registrable Shares" means (i) the shares of Common Stock issued to a
Holder under the Plan or (ii) any Common Stock issued with respect to the Common
Stock referred to in clause (i) hereof by way of a stock dividend, stock split
or reverse stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable Shares, such securities shall cease to be Registrable Shares when
(i) a registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (ii) they shall
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require the registration under the Securities Act, (iv) they may
be sold under Rule 144 of the Securities Act or any successor or similar rule or
provision, without regard to volume limitations, or (v) they shall have ceased
to be outstanding.
"Registration Expenses" means all expenses incident to the registration
and disposition of the Registrable Shares pursuant to Section 2 hereof,
including all registration, filing and applicable national securities exchange
fees; all fees and expenses of complying with state securities or blue sky laws;
all duplicating and printing expenses; the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses of
"cold comfort" letters; and the reasonable fees and expenses of one outside
counsel to the Holders selected by a plurality of all Electing Holders who own
an aggregate of not less than 25% of the Registrable Shares covered by the Shelf
Registration Statement; provided, however, Registration Expenses shall exclude
and the Holders shall pay (i) any underwriting discounts and commissions in
respect of the Registrable Shares included in an underwriting and (ii) any
brokerage fees and commissions.
"Requisite Holders" has the meaning set forth in Section 2.3 of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar federal statute.
"Shelf Registratin Period" has the meaning set forth in Section 2.1(a)
of this Agreement.
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"Shelf Registration Statement" has the meaning set forth in Section
2.1(a) of this Agreement.
"Suspension Event" means any time the Company reasonably believes an
amendment or supplement to the Shelf Registration Statement may be required and
reasonably believes that amending or supplementing the Shelf Registration
Statement at that time would interfere with a pending, proposed or planned
acquisition, disposition, financing, reorganization or other material
transaction or event involving the Company or its subsidiaries or otherwise
would require the disclosure of material non-public information.
"Suspension Period" has the meaning set forth in Section 2.1(a) of this
Agreement.
2. Shelf Registration; Registration Under Securities Act
2.1 Shelf Registration
(a) Shelf Registration Period
Within 30 days following the date of this Agreement, the Company shall
use commercially reasonable efforts to file with the Commission, at the
Company's expense, a "shelf" registration statement on any appropriate form
pursuant to Rule 415 under the Securities Act covering all Registrable Shares
requested to be included in the registration by Electing Holders (the "Shelf
Registration Statement"). The Company shall use commercially reasonable efforts
to have the Shelf Registration Statement initially declared effective within 90
days after the date of this Agreement and to keep the Shelf Registration
Statement continuously effective until the earliest of (i) such time as all
shares of Registrable Shares have been sold thereunder, (ii) three years
following the date on which the Shelf Registration Statement is declared
effective, or (iii) such time as all of the Registrable Shares can be sold by
the Electing Holders thereof under Rule 144 of the Securities Act or any
successor or similar rule or provision without regard to volume limitations (the
"Shelf Registration Period"). The Company shall, to the extent necessary, use
commercially reasonable efforts to supplement or amend the Shelf Registration
Statement to keep the Shelf Registration Statement effective during the Shelf
Registration Period. For purposes hereof, "Suspension Period" shall mean a
period of time commencing on the date on which the Company provides notice (i)
that the prospectus included in the Shelf Registration Statement may no longer
comply with the requirements therefor prescribed by Section 10(a) of the
Securities Act, (ii) of the happening of any event described in Section
2.2(f)(iii) or (v), or (iii) that there is a Suspension Event, and the Company
has elected to require the suspension of the sale by each Holder of Registrable
Shares pursuant to the Shelf Registration Statement, and shall end on the date
when such Holder either receives copies of the supplemented or amended
prospectus contemplated by Section 2.2(c) or such earlier time that such Holder
is otherwise advised in writing by the Company that use of the prospectus may be
resumed. Each Holder agrees that it will not sell any share of Registrable
Shares pursuant to the Shelf Registration Statement during any Suspension
Period. The Company will use commercially reasonable efforts to ensure that the
aggregate duration of Suspension Periods in any 12-month period does not exceed
a total of 90 days. The Shelf Registration Period shall be extended by the
number of days from and including the date of the giving of any such notice to
and including the date when such Holder shall have received copies of such
amended or supplemented prospectus or such earlier time that such Holder is
otherwise advised in writing by the Company that the use of the prospectus may
be resumed.
(b) Electing Holders
Holders desiring to include Registrable Shares in the Shelf
Registration Statement must return a completed Notice and Questionnaire to the
Company no later than 30 days after the date of this
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Agreement. No Holder shall be entitled to be named as a selling securityholder
in the Shelf Registration Statement as of the Effective Time, the Company shall
not be required to take any action to name such Holder as a selling
securityholder in the Shelf Registration Statement, and no Holder shall be
entitled to use the prospectus forming a part thereof for resales of Registrable
Shares at any time, unless and until such Holder has returned a completed and
signed Notice and Questionnaire to the Company on or before 30 days after the
date of this Agreement.
(c) Registration Expenses
The Company shall pay all Registration Expenses incurred in connection
with the Shelf Registration Statement, whether or not it becomes effective.
Notwithstanding the foregoing, nothing herein shall obligate the Company to
incur or pay for fees and disbursements of underwriters, brokers or other
selling expenses in connection with a distribution under the Shelf Registration
Statement.
2.2 Registration Procedures
In connection with the Shelf Registration Statement, the Company shall:
(a) prior to the effective time of the Shelf Registration
Statement, the Company shall furnish drafts of such Shelf Registration Statement
(including all exhibits) to the Electing Holders, and prior to filing any
amendment or supplement thereto, the Company shall furnish drafts of such
documents to each Electing Holder and each underwriter, if any, participating in
the offering of the Registrable Shares, and shall use commercially reasonable
efforts to take into account, and, if appropriate, reflect in an amendment,
comments as such Electing Holders or underwriters and their respective counsel
reasonably may propose;
(b) notify each Electing Holder of the Commission's requests for
amending or supplementing the Shelf Registration Statement and the prospectus,
and use commercially reasonable efforts to prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such Shelf
Registration Statement effective and to comply with the provisions of the
Securities Act;
(c) furnish, without charge, to each Electing Holder and each
underwriter such number of conformed copies of such Shelf Registration Statement
and of each such amendment and supplement thereto, such number of copies of the
prospectus contained in such Shelf Registration Statement, in conformity with
the requirements of the Securities Act, and such other documents, as such
Electing Holders and such underwriters may reasonably request;
(d) use commercially reasonable efforts to register or qualify
all Registrable Shares and other securities covered by such Shelf Registration
Statement under such securities or blue sky laws of such States of the United
States of America where an exemption is not available and as any Electing Holder
or any managing underwriter, if any, shall reasonably request; provided,
however, that the Company shall not for any purpose be required to execute a
general consent to service of process, subject itself to taxation in any
jurisdiction where it does not pay taxes or to qualify to do business as a
foreign corporation in any jurisdiction where it is not so qualified;
(e) in connection with any underwritten offering conducted
pursuant to Section 2.3, use commercially reasonable efforts to obtain a "cold
comfort" or special procedures letter or letters dated as of the date of the
closing under the underwriting agreement from the Company's independent public
accountants who have audited the financial statements of the Company included in
the Shelf Registration
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Statement, in customary form and covering matters of the type customarily
covered by "cold comfort" letters delivered to underwriters in underwritten
secondary public offerings of securities;
(f) promptly notify the Electing Holders and each managing
underwriter, if any, participating in the offering of the securities covered by
such Shelf Registration Statement (i) when such Shelf Registration Statement,
any pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such Shelf Registration Statement has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission for amendments or supplements to such Shelf
Registration Statement or the prospectus related thereto or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such Shelf Registration Statement or the
initiation of any proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the Registrable Shares for sale under the securities or blue sky laws
of any jurisdiction or the initiation of any proceeding for such purpose; and
(v) at any time during the Shelf Registration Period, on discovery that, or on
the happening of any event as a result of which, the prospectus included in such
Shelf Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the light
of the circumstances under which they were made; and
(g) otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
which shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations promulgated thereunder.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement or shall initiate any
proceedings for that purpose, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification of any
Registrable Shares for sale under the state securities or blue sky laws of any
jurisdiction or shall initiate any proceedings for that purpose, the Company
shall use its commercially reasonable efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
The Company may require the Holders selling Registrable Shares covered
by such Shelf Registration Statement to furnish the Company such information
regarding the Holders and the distribution of the Registrable Shares as the
Company may from time to time reasonably request, including, without limitation
the Notice and Questionnaire. If a Holder fails to provide such information and
the failure by such Holder to furnish such information would prevent or
unreasonably delay the Shelf Registration Statement relating to such
registration from being declared effective by the Commission, the Company may
exclude such Holder's Registrable Shares from such registration.
The Holders agree that upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph Section
2.2(f)(iii) or (v), each of the Holders will discontinue its disposition of
Registrable Shares pursuant to the Shelf Registration Statement relating to such
Registrable Shares until the Company notifies Holders in writing that they may
recommence sales and dispositions under the Shelf Registration Statement and, in
the case of Section 2.2(f)(v), Holders receive copies of the supplemented or
amended prospectus contemplated by Section 2.2(f)(v) and, if so directed by the
Company, Holders will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in its possession, of the
prospectus relating to such Registrable Shares current at the time of receipt of
such notice.
2.3 Underwritten Offering
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Any Electing Holder who desires to do so may sell its Registrable
Shares (in whole or in part) in an underwritten offering under the Shelf
Registration Statement; provided that (i) the Electing Holders of at least 25%
of the Registrable Shares then covered by the Shelf Registration Statement (the
"Requisite Holders") shall request such an offering and (ii) at least such
number of such Registrable Shares shall be included in such offering; and
provided further that the Company shall not be obligated to cooperate with more
than one underwritten offering during the Shelf Registration Period. Upon
receipt of such a request, the Company shall provide all Electing Holders of
Registrable Shares written notice of the request, which notice shall inform such
Electing Holders that they have the opportunity to participate in the offering.
The Requisite Holders shall designate the managing underwriter for such
underwritten offering, subject to the approval of the Company, which approval
shall not be unreasonably withheld or delayed. If requested by the underwriters
for any such underwritten offering pursuant to the Shelf Registration Statement,
the Company shall enter into a customary underwriting agreement with such
underwriter or underwriters. No Electing Holder may participate in any
underwritten offering contemplated hereby unless (a) such Holder agrees to sell
such Holder's Registrable Shares to be included in the underwritten offering in
accordance with any approved underwriting arrangements, and (b) such Electing
Holder completes and executes all reasonable and customary questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements.
2.4 Preparation; Reasonable Investigation
In connection with the preparation and filing of the Shelf Registration
Statement, the Company will make reasonably available for inspection by any
Electing Holder, by any underwriter participating in any disposition to be
effected under the Shelf Registration Statement and by any attorney, accountant
or other agent retained by any such seller or any such underwriter
(collectively, "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively the
"Records") as shall be reasonably necessary to enable them to exercise "due
diligence" within the meaning of the Securities Act, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by any Inspector in connection with the Shelf Registration Statement,
provided, however, that if the Company reasonably determines in good faith that
any of such Records or other information are confidential and so notifies the
Inspectors in writing, then, unless (A) the disclosure of such Records is
necessary to avoid or correct a material misstatement or material omission in
the Shelf Registration Statement or is otherwise required by law or legal
process, (B) the release of such Records is required pursuant to a subpoena,
court order or regulatory or agency request, or (C) the information in such
Records has been made generally available to the public without violation of any
confidentiality obligations hereunder, the Company's obligation to make such
confidential Records or other information available hereunder shall be subject
to the appropriate parties signing confidentiality agreements acceptable to the
Company.
2.5 Indemnification
(a) Indemnification by the Company
The Company agrees that on registration of the Registrable Shares
pursuant to Section 2.1 hereof, to the extent permitted by applicable laws, the
Company shall, and hereby does, indemnify and hold harmless each Electing
Holder, its respective directors, officers, partners, agents and affiliates and
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such Electing Holder
or any such underwriter within the meaning of the Securities Act (each, a
"Holder Indemnitee"), against any losses, claims, damages, or liabilities, joint
or several, to which such Holder Indemnitee may become subject under the
Securities Act or otherwise,
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insofar as such losses, claims, damages or liabilities, joint or several (or
actions or proceedings in respect thereof), arise out of or are based on (i) any
untrue statement or alleged untrue statement of any material fact contained in
the Shelf Registration Statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto
or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, and the
Company shall reimburse such Holder Indemnitee for the reasonable legal fees and
expenses of one outside counsel and any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case or to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based on an untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Holder or underwriter for use therein, as the case may be, for
use in the preparation thereof; and provided, further, that the Company shall
not be liable to any Person who participates as an underwriter in the offering
or sale of Registrable Shares or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Shares to such Person if such statement or omission was corrected
in such final prospectus. Such indemnity shall remain in full force regardless
of any investigation made by or on behalf of Holder or any such director,
officer, partner, agent or affiliate or controlling Person and shall survive the
transfer of such securities by such Holder.
(b) Indemnification by the Holders
Each Electing Holder including any Registrable Shares in the Shelf
Registration Statement, hereby agrees, severally and not jointly, to the extent
permitted by applicable laws, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 2.5(a)) the Company, and each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the Securities Act, and, to
the extent requested, each underwriter, with respect to any statement or alleged
statement in or omission or alleged omission from such Shelf Registration
Statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, but only to the
extent such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Holder for use therein; provided, however, that the
liability of such indemnifying party under this Section 2.5(b) shall be limited
to the amount of net proceeds received by such indemnifying party in the
offering giving rise to such liability. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling Person and shall survive
the transfer of such securities by such Holder; and provided, further, that such
Holder shall not be liable to any Person who participates as an underwriter in
the offering or sale of Registrable Shares or any other Person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to any other Person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Shares to such other Person if
such statement or omission was corrected by such Holder in such final
prospectus.
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(c) Notices of Claims, Etc.
Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding subsections of this Section 2.5, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action or proceeding;
provided, however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this Section 2.5, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice,
and shall not relieve the indemnifying party from any liability which it may
have to the indemnified party otherwise than under this Section 2.5. In case any
such action or proceeding is brought against an indemnified party, the
indemnifying party shall be entitled to participate therein and, unless in the
opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and if in the opinion of outside counsel to the
indemnified party there may be legal defenses available to such indemnified
party and/or other indemnified parties which are different from or in addition
to those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to defend such action or
proceeding on behalf of such indemnified party or parties and the indemnifying
party shall be obligated to pay the fees and expenses of one separate outside
counsel (in addition to any local counsel). After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal expenses
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation (unless the proviso in the preceding
sentence shall be applicable). No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Contribution
If the indemnification provided for in this Section 2.5 shall for any
reason be held by a court to be unavailable to an indemnified party under
subsection (a) or (b) hereof in respect of any loss, claim, damage or liability,
or any action in respect thereof, then, in lieu of the amount paid or payable
under subsection (a) or (b) hereof, the indemnified party and the indemnifying
party under subsection (a) or (b) hereof shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating the same), (i) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand, and the indemnified party on the other, which resulted in
such loss, claim, damage or liability, or action in respect thereof, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the allocation provided in this clause
(ii) provides a greater amount to the indemnified party than clause (i) above,
in such proportion as shall be appropriate to reflect not only the relative
fault but also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities covered by such Shelf
Registration Statement as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 2.5(d) were to be
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determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in this
Section 2.5(d). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
subsection (d) are several and not joint and shall be in proportion to the
relative value of their respective Registrable Shares covered by such Shelf
Registration Statement. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld. Notwithstanding anything in this subsection (d) to the contrary, no
indemnifying party (other than the Company) shall be required to contribute any
amount in excess of the net proceeds received by such party from the sale of the
Registrable Shares in the offering to which the losses, claims, damages or
liabilities of the indemnified parties relate.
(e) Survival.
The agreements contained in this Section 2.5 shall survive the sale of
the Registrable Securities pursuant to the Shelf Registration Statement and
shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of any indemnified party.
2.6 Limitation on Sale of Securities
In connection with (1) any underwritten public offering of shares of
Common Stock, or securities convertible into or exercisable or exchangeable for
Common Stock, issued by the Company during the Shelf Registration Period and (2)
any underwritten offering of Registrable Shares under the Shelf Registration
Statement, each of the Holders agrees, if requested by the managing underwriter,
not to effect any sale or distribution of, grant any option for the purchase of
or otherwise dispose of, including a sale pursuant to Rule 144 of the Securities
Act or under the Shelf Registration Statement, (i) any shares of Common Stock
(except, if applicable, as part of such underwritten offering), (ii) any
securities of the Company similar to any such issue or (iii) any security
convertible into or exchangeable or exercisable for any shares of Common Stock
or similar issue of the Company during the 15 days prior to commencement of the
underwritten offering, as reasonably determined by the Company, and during the
90-day period (or such other period as may be reasonably requested by the
underwriter of such offering) after the date of the final prospectus for such
underwriting offering. The Shelf Registration Period shall be extended by the
number of days during which the Holders are subject to any trading restriction
pursuant to this Section 2.6.
2.7 No Required Sale
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any of the Holders to sell any Registrable Shares
pursuant to any effective Shelf Registration Statement.
2.8 Notice of Proposed Sale
Other than in connection with an underwritten offering under the Shelf
Registration Statement, each Electing Holder intending to sell any Registrable
Shares under the Shelf Registration Statement agrees to provide the Company with
written notice of such intent substantially in the form of Exhibit B to this
Agreement at least four business days prior to the proposed sale date. Such
Holder understands that no sale can be consummated until the fourth Business Day
following the date it delivers the notice to the Company. In the event the
Company notifies such Holder of a Suspension Event before the fourth business
day following the date such Holder delivers the notice to the Company, Holder
will not
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consummate the sale until the Company notifies such Holder in writing of the end
of the Suspension Period.
2.9 Listing Requirements
The Company shall use commercially reasonable efforts to cause all
Registrable Securities covered by the Shelf Registration Statement to be listed
on each securities exchange or automated quotation system on which any shares of
Common Stock are listed.
3. Rule 144
The Company shall take commercially reasonable actions necessary to
enable holders of Registrable Shares to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or regulation hereafter
adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of any Holder, the Company will deliver to such
holder a written statement as to whether it has complied with such requirements.
4. Amendments
This Agreement may not be modified or amended, except pursuant to the
written consent of the Holders of not less than 50% of the Registrable Shares
and the Company.
5. Waivers
The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
by the party entitled to enforce such term, but such waiver shall be effective
only if it is in a writing signed by the party entitled to enforce such term and
against which such waiver is to be asserted; provided, however, that a writing
signed by the Holders of a majority of the then outstanding Registrable Shares
shall operate as an effective waiver signed by and binding upon each Holder of
Registrable Shares. No failure or delay on the part of the Company or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. No delay in exercising any rights hereunder shall
operate as a waiver of any rights of the Company or any Holder.
6. Adjustments
In the event of any change in the capitalization of the Company as a
result of any stock split, stock dividend, reverse split, combination,
recapitalization, merger, consolidation, or otherwise, applicable provisions of
this Agreement shall be appropriately adjusted.
7. Notice
All notices and other communications hereunder shall be in writing and,
unless otherwise provided herein, shall be deemed to have been given when
received by the party to whom such notice is
10
to be given at its address set forth below, or such other address for the party
as shall be specified by notice given pursuant hereto:
(a) If to any Holder, the address of such Holder set forth on
the signature page hereto;
(b) If to the Company, to it at:
Imperial Sugar Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and General Counsel
ax: (▇▇▇) ▇▇▇-▇▇▇▇
8. Termination
Except as set forth in Section 2.5(e) above, this Agreement shall
terminate and be of no further force or effect on the earlier of (i) the first
date on which there are no Registrable Shares subject to this Agreement or (ii)
as to each Holder, upon the first day or which all of such Holder's Registrable
Shares may be sold under Rule 144 of the Securities Act or any successor or
similar rule or provision then in effect, without regard to volume limitations;
provided, however, that notwithstanding the time periods set forth in this
Section 8, with respect to each Holder referred to in clause (ii), the Company
shall continue to comply with its obligations under Section 3 until the
disposition by such Holder of all of its Registrable Shares pursuant to Rule 144
or otherwise.
9. Assignment
This Agreement shall be binding on and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. No Holder may assign this Agreement or its rights hereunder except to a
transferee of all of such Holder's Registrable Shares under a written agreement
reasonably satisfactory to the Company whereby the assignee agrees to assume all
of the obligations of such Holder hereunder and to be bound by all of the terms,
conditions and restrictions set forth in this Agreement; provided, that if the
assigning Holder is an Electing Holder, such assignee shall have delivered to
the Company the Notice and Questionnaire before any assignment hereunder may be
effected.
10. Remedies
The parties hereto agree that money damages or any other remedy at law
would not be sufficient or adequate remedy for any breach or violation of, or a
default under, this Agreement by them and that, in addition to all other
remedies available to them, each of them shall be entitled to an injunction
restraining such breach, violation or default or threatened breach, violation or
default and to any other equitable relief, including, without limitation,
specific performance, without bond or other security being required. In any
action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
11
11. No Inconsistent Agreements
The Company will not, on or after the date of this Agreement, enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.
12. Headings
Headings of the sections and paragraphs of this Agreement are for
convenience only and shall be given no substantive or interpretive effect
whatsoever.
13. Governing Law
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Texas, without giving effect to the
conflicts of law principles thereof.
14. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
15. Invalidity of Provision
The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. If any restriction or provision of this Agreement is held
unreasonable, unlawful or unenforceable in any respect, such restriction or
provision shall be interpreted, revised or applied in a manner that renders it
lawful and enforceable to the fullest extent possible under law.
16. Further Assurances
Each party hereto shall do and perform or cause to be done and
performed all further acts and things and shall execute and deliver all other
agreements, certificates, instruments, and documents as any other party hereto
reasonably may request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
17. Entire Agreement; Effectiveness
This Agreement and the other writings referred to herein or delivered
in connection herewith contain the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
12
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written:
COMPANY:
--------
IMPERIAL SUGAR COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
HOLDERS:
--------
▇▇▇▇▇▇ BROTHERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Senior Vice-President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Exhibit A
---------
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
________________, 2001
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") among Imperial Sugar Company (the "Company")
and the Holders named therein. Pursuant to the Registration Rights Agreement,
the Company has filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement (the "Shelf Registration Statement")
for the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of the shares of the Company's common stock,
without par value (the "Common Stock"). A copy of the Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Shares (as defined below) is
entitled to have the Registrable Shares beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Shares included in
the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE 30 DAYS AFTER THE DATE OF THE REGISTRATION
-------------------------------------------------------
RIGHTS AGREEMENT. Beneficial owners of Registrable Shares who do not complete,
----------------
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the prospectus forming a part thereof for resales of Registrable
Shares.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related prospectus.
Accordingly, holders and beneficial owners of Registrable Shares are advised to
consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Shares hereby elects to include in the Shelf Registration Statement the
Registrable Shares beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Shares by the terms and conditions of
this Notice and Questionnaire and the Registration Rights Agreement, including,
without limitation, Section 2.5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Shares pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
the Notice of Transfer set forth as Exhibit B to the Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a)Full Legal Name of Selling Securityholder:
_______________________________________________________________________
(b)Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Shares Listed in Item (3) below:
_______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Shares Listed in Item (3) below are
Held:
_______________________________________________________________________
(2) Address for Notices to Selling Securityholder:
_____________________________
_____________________________
_____________________________
Telephone: _____________________________
Fax: _____________________________
Contact Person: _____________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any shares of Common Stock.
(a) Number of Registrable Shares (as defined in the Registration Rights
Agreement) beneficially owned: ____________________
(b) Number of shares of Common Stock other than Registrable Shares
beneficially owned: _________
(c) Number of Registrable Shares which the undersigned wishes to be
included in the Shelf Registration Statement:_____________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Shares listed above in Item (3) only as
follows (if at all): Such Registrable Shares may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Shares may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Shares or
otherwise, the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Shares in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Shares short and deliver Registrable
Shares to close out such short positions, or loan or pledge Registrable Shares
to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: Except as otherwise provided in the Registration Rights
Agreement, in no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Shares without the prior agreement of
the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Shares listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
A-5
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Sections 2.1(b) and 2.2 of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
To the Company:
Imperial Sugar Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇. ▇. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable Shares
beneficially owned by such Selling Securityholder and listed in Item (3) above).
This Agreement shall be governed in all respects by the laws of the State of
Texas.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated: ___________________
_______________________________________
Selling Securityholder
(Print/type full legal name of
beneficial owner of Registrable Shares)
By: ___________________________________
Name: _________________________________
Title: ________________________________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE 30 DAYS AFTER THE DATE OF THE REGISTRATION RIGHTS AGREEMENT TO THE
COMPANY'S COUNSEL AT:
Imperial Sugar Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A-7
Exhibit B
---------
NOTICE OF PROPOSED TRANSFER PURSUANT TO REGISTRATION STATEMENT
Bank of New York
__________________________
__________________________
__________________________
Attention: _______________
Imperial Sugar Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and General Counsel
FAX (▇▇▇) ▇▇▇-▇▇▇▇
Re: Imperial Sugar Company (the "Company") shares of Common Stock,
without par value (the "Shares")
Dear Sirs:
Please be advised that ____________________ proposes to transfer
___________ Shares pursuant to an effective Registration Statement (File No.
333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, will be satisfied and that the
above-named beneficial owner of the Shares is named as a "Selling Holder" in the
prospectus dated [date], or in supplements thereto, and that the number of
Shares transferred are the number of Shares listed in such prospectus opposite
such owner's name.
Dated: _________________
Very truly yours,
__________________________
(Name)
By: ______________________
(Authorized Signature)
B-1
