EXHIBIT 10.2
THIS CORPORATE AGREEMENT ("Agreement", as amended) is entered into as
of June 14, 1999, by and between RJR NABISCO HOLDINGS CORP. (to be renamed
"Nabisco Group Holdings Corp."), a Delaware corporation ("Holdings"), NABISCO
HOLDINGS CORP., a Delaware corporation ("Nabisco"), and, solely for purposes
of Section 5.13, R.J. REYNOLDS TOBACCO HOLDINGS, INC., a Delaware corporation
(formerly named "RJR Nabisco, Inc.") ("RJRTH").
RECITALS
A. Holdings beneficially owns all of the issued and outstanding
Nabisco Class B Common Stock, par value $0.01 per share ("Class B Common
Stock"), and Nabisco is a member of Holdings' "affiliated group" of
corporations (the "Holdings Group") for federal income tax purposes.
B. The parties desire to enter into this Agreement to set forth their
agreement regarding (i) Holdings' rights to purchase additional shares of
Class B Common Stock, upon any issuance of certain classes of capital stock of
Nabisco to any person, to permit Holdings to maintain its then percentage
ownership interest in Nabisco, (ii) Holdings' rights to purchase shares of
non-voting classes of capital stock of Nabisco to permit Holdings to own 80
percent of each class of such stock outstanding, (iii) certain registration
rights with respect to Class B Common Stock (and any other securities issued
in respect thereof or in exchange therefor) and (iv) certain representations,
warranties, covenants and agreements applicable to Nabisco so long as it is a
subsidiary of Holdings.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Holdings and Nabisco, for
themselves, their successors, and assigns, hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following
terms will have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"Affiliate" means, with respect to a given Person, any Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to vote a
majority of the securities having voting power for the election of directors
(or other Persons acting in similar capacities) of such Person or otherwise to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or
otherwise.
"Applicable Stock" means at any time the (i) shares of Class B Common
Stock owned by the Holdings Entities that were owned on the date hereof, plus
(ii) shares of Class B Common Stock purchased by the Holdings Entities
pursuant to Article II of this Agreement, plus (iii) shares of Common Stock
that were issued to Holdings Entities in respect of shares described in either
clause (i) or clause (ii) in any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event.
"Class A Common Stock" means the Class A Common Stock, par value
$0.01 per share, of Nabisco.
"Class B Common Stock" has the meaning ascribed thereto in the
recitals to this Agreement.
"Class B Common Stock Option" has the meaning ascribed thereto in
Section 2.01(a).
"Class B Common Stock Option Notice" has the meaning ascribed thereto
in Section 2.02.
"Common Stock" means the Class B Common Stock, the Class A Common
Stock, any other class of Nabisco capital stock representing the right to vote
generally for the election of directors and, for so long as Nabisco continues
to be a subsidiary corporation includible in a consolidated federal income tax
return of the Holdings Group, any other security of Nabisco treated as stock
for purposes of Section 1504 of the Internal Revenue Code of 1986, as amended.
"Company Securities" has the meaning ascribed thereto in Section
3.02(b).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 3.01(a).
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"Holder" means Holdings and any Transferee.
"Holder Securities" has the meaning ascribed thereto in Section
3.02(b).
"Holdings Entities" means Holdings and Subsidiaries of Holdings
(other than Subsidiaries that constitute Nabisco Entities) and "Holdings
Entity" shall mean any of the Holdings Entities.
"Holdings Group" has the meaning ascribed thereto in the recitals to
this Agreement.
"Holdings Ownership Reduction" means any decrease at any time in the
Ownership Percentage to less than 50%.
"Holdings Transferee" has the meaning ascribed thereto in Section 3.09.
"Issuance Event" has the meaning ascribed thereto in Section 2.02.
"Issuance Event Date" has the meaning ascribed thereto in Section 2.02.
"Market Price" of any shares of Class A Common Stock on any date
means (i) the average of the last sale price of such shares on each of the
five trading days immediately preceding such date on the New York Stock
Exchange, Inc. or, if such shares are not listed thereon, on the principal
national securities exchange or automated interdealer quotation system on
which such shares are traded or (ii) if such sale prices are unavailable or
such shares are not so traded, the value of such shares on such date
determined in accordance with agreed-upon procedures reasonably satisfactory
to Nabisco and Holdings.
"Nabisco" has the meaning ascribed thereto in the preamble hereto.
"Nabisco Entities" means Nabisco and its Subsidiaries.
"Nonvoting Stock" means any class of Nabisco capital stock not
representing the right to vote generally for the election of directors.
"Nonvoting Stock Option" has the meaning ascribed thereto in Section
2.01(c).
"Nonvoting Stock Option Notice" has the meaning ascribed thereto in
Section 2.02.
"Other Holders" has the meaning ascribed thereto in Section 3.02(b).
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"Other Securities" has the meaning ascribed thereto in Section 3.02.
"Ownership Percentage" means, at any time, the fraction, expressed as
a percentage and rounded to the next highest thousandth of a percent, whose
numerator is the aggregate Value of the Applicable Stock and whose denominator
is the sum of the aggregate Value of outstanding shares of Common Stock of
Nabisco plus Repurchased Shares; provided, however, that any shares of Common
Stock issued by Nabisco in violation of its obligations under Article II of
this Agreement shall not be deemed outstanding for the purpose of determining
the Ownership Percentage. For purposes of this definition and the definition
of Repurchased Shares, "Value" means, with respect to any share of stock, the
value of such share determined by Holdings under principles applicable for
purposes of Section 1504 of the Internal Revenue Code of 1986, as amended.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"Registrable Securities" means Class B Common Stock and any stock or
other securities into which or for which such Class B Common Stock may
hereafter be changed, converted or exchanged and any other shares or
securities issued to Holders of such Class B Common Stock (or such shares or
other securities into which or for which such shares are so changed, converted
or exchanged) upon any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction
or event or pursuant to the Nonvoting Stock Option. As to any particular
Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder thereof shall have been declared 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 in accordance with Rule 144, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by Nabisco and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act or any state securities or blue sky law then in
effect or (iv) they shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article III, including, without limitation, (i) the fees, disbursements and
expenses of Nabisco's counsel and accountants and the reasonable fees and
expenses of counsel selected by the Holders in accordance with this Agreement
in connection with the registration of the securities to be disposed of; (ii)
all expenses, including
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filing fees, in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters and dealers; (iii) the
cost of printing or producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of
the securities to be disposed of; (iv) all expenses in connection with the
qualification of the securities to be disposed of for offering and sale under
state securities laws, including the fees and disbursements of counsel for the
underwriters or the Holders of securities in connection with such
qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the securities to be disposed of; (vi) transfer agents' and registrars' fees
and expenses and the fees and expenses of any other agent or trustee appointed
in connection with such offering; (vii) all security engraving and security
printing expenses; (viii) all fees and expenses payable in connection with the
listing of the securities on any securities exchange or automated interdealer
quotation system or the rating of such securities, (ix) any other fees and
disbursements of underwriters customarily paid by the sellers of securities,
but excluding underwriting discounts and commissions and transfer taxes, if
any, and (x) other reasonable out-of-pocket expenses of Holders other than
legal fees and expenses referred to in clause (i) above.
"Repurchased Shares" mean the aggregate Value of shares of Nabisco's
Common Stock that are, from and after the date hereof, repurchased by Nabisco
from its shareholders, less the aggregate Value of shares of Common Stock (up
to the aggregate Value so repurchased) that are re-issued from and after the
date hereof upon the exercise of stock options or otherwise.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous
basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Selling Holder" has the meaning ascribed thereto in Section 3.04(e).
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"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof. Subsidiary, when used
with respect to Holdings or Nabisco, shall also include any other entity
affiliated with Holdings or Nabisco, as the case may be, that Holdings and
Nabisco may hereafter agree in writing shall be treated as a "Subsidiary" for
the purposes of this Agreement.
"Transferee" has the meaning ascribed thereto in Section 3.09.
SECTION 1.02. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and
references to the parties shall mean the parties to this Agreement.
ARTICLE 2
OPTIONS
SECTION 2.01. Options. (a) Nabisco hereby grants to Holdings, on the
terms and conditions set forth herein, a continuing right (the "Class B Common
Stock Option") to purchase from Nabisco, at the times set forth herein, such
number of shares of Class B Common Stock as is necessary to allow the Holdings
Entities to maintain the then-current Ownership Percentage. The Class B Common
Stock Option shall be assignable, in whole or in part and from time to time,
by Holdings to any Holdings Entity. The exercise price for the shares of Class
B Common Stock purchased pursuant to the Class B Common Stock Option shall be
the Market Price of the Class A Common Stock as of the date of first delivery
of notice of exercise of the Class B Common Stock Option by Holdings (or its
permitted assignee hereunder) to Nabisco.
(b) The provisions of Section 2.01(a) hereof notwithstanding, the
Class B Common Stock Option granted pursuant to Section 2.01(a) shall not
apply and shall not be exercisable in connection with the issuance by Nabisco
of any shares of Class B Common Stock upon the exercise of stock options
granted pursuant to Nabisco's Long Term Incentive Plan or any successor plan,
so long as, from and after the date hereof and prior to the issuance of such
shares upon exercise of options, Nabisco has repurchased from shareholders
such number of shares as shall be equal to or greater than the total number of
shares previously issued or to be issued under the Nabisco Long Term Incentive
Plan or any successor plan in connection with any such exercise of options.
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(c) Nabisco hereby grants to Holdings, on the terms and conditions
set forth herein, a continuing right (the "Nonvoting Stock Option" and,
together with the Class B Common Stock Option, the "Options") to purchase from
Nabisco, at the times set forth herein, such number of shares of Nonvoting
Stock as is necessary to allow the Holdings Entities to own 80 percent of each
class of outstanding Nonvoting Stock. The Nonvoting Stock Option shall be
assignable, in whole or in part and from time to time, by Holdings to any
Holdings Entity. The exercise price for the shares of Nonvoting Stock
purchased pursuant to the Nonvoting Stock Option shall be the price at which
such Nonvoting Stock is then being sold to third parties.
SECTION 2.02. Notice. At least 20 business days prior to the issuance
of any shares of Common Stock or the first date on which any event could occur
that, in the absence of a full or partial exercise of the Class B Common Stock
Option, would result in a reduction in the Ownership Percentage, Nabisco will
notify Holdings in writing (a "Class B Common Stock Option Notice") of any
plans it has to issue such shares or the date on which such event could first
occur. At least 20 business days prior to the issuance of any shares of
Nonvoting Stock or the first date on which any event could occur that, in the
absence of a full or partial exercise of the Nonvoting Stock Option, would
result in the Holdings Entities owning less than 80 percent of each class of
outstanding Nonvoting Stock, Nabisco will notify Holdings in writing (a
"Nonvoting Stock Option Notice" and, together with or separate from a Class B
Common Stock Option Notice, an "Option Notice") of any plans it has to issue
such shares or the date on which such event could first occur.
Each Option Notice must specify the date on which Nabisco intends to
issue such additional shares or on which such event could first occur (such
issuance or event being referred to herein as an "Issuance Event" and the date
of such issuance or event as an "Issuance Event Date"), the number of shares
Nabisco intends to issue or may issue and the other terms and conditions of
such Issuance Event.
SECTION 2.03. Option Exercise and Payment. The Class B Common Stock
Option may be exercised by Holdings (or any Holdings Entity to which all or
any part of the Class B Common Stock Option has been assigned) for a number of
shares equal to or less than the number of shares that are necessary for the
Holdings Entities to maintain, in the aggregate, the Ownership Percentage. The
Nonvoting Stock Option may be exercised by Holdings (or any Holdings Entity to
which all or any part of the Nonvoting Stock Option has been assigned) for a
number of shares equal to or less than the number of shares that are necessary
for the Holdings Entities to own, in the aggregate, 80 percent of each class
of outstanding Nonvoting Stock. Each Option may be exercised at any time after
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receipt of an applicable Option Notice and prior to the applicable Issuance
Event Date by the delivery to Nabisco of a written notice to such effect
specifying (i) the number of shares of Class B Common Stock or Nonvoting Stock
(as the case may be) to be purchased by Holdings, or any of the Holdings
Entities, and (ii) a calculation of the exercise price for such shares. Upon
any such exercise of either Option, Nabisco will, prior to the applicable
Issuance Event Date, deliver to Holdings (or any Holdings Entity designated by
Holdings), against payment therefor, certificates (issued in the name of
Holdings or its permitted assignee hereunder, or as directed by Holdings)
representing the shares of Class B Common Stock or Nonvoting Stock (as the
case may be) being purchased upon such exercise. Payment for such shares shall
be made by wire transfer or intrabank transfer to such account as shall be
specified by Nabisco, for the full purchase price for such shares.
SECTION 2.04. Effect of Failure to Exercise. Any failure by Holdings
to exercise either Option, or any exercise for less than all shares
purchasable under either Option, in connection with any particular Issuance
Event shall not affect Holdings' right to exercise the relevant Option in
connection with any subsequent Issuance Event; provided, however, that, in the
case of the Class B Common Stock Option, the Ownership Percentage following
such Issuance Event in connection with which Holdings so failed to exercise
such Option in full or in part shall be recalculated as set forth in Section
1.01.
SECTION 2.05. Termination of Options. The Options shall terminate
upon the occurrence of any Issuance Event that, after considering Holdings'
response thereto and to any other Issuance Events, results in the Ownership
Percentage being less than 50%, other than any Issuance Event in violation of
this Agreement. Each Option, or any portion thereof assigned to any Holdings
Entity other than Holdings, also shall terminate in the event that the Person
to whom such Option, or such portion thereof has been transferred, ceases to
be an Holdings Entity for any reason whatsoever.
ARTICLE 3
REGISTRATION RIGHTS
SECTION 3.01. Demand Registration. (a) Upon written notice provided
at any time after the date hereof from any Holder of Registrable Securities
requesting that Nabisco effect the registration under the Securities Act of
any or all of the Registrable Securities held by such Holder, which notice
shall specify the intended method or methods of disposition of such
Registrable Securities,
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Nabisco shall use its best efforts to effect the registration under the
Securities Act and applicable state securities laws of such Registrable
Securities for disposition in accordance with the intended method or methods
of disposition stated in such request (including in a Rule 415 Offering, if
Nabisco is then eligible to register such Registrable Securities on Form S-3
(or a successor form) for such offering); provided that:
(i) with respect to any registration statement filed, or to be
filed, pursuant to this Section 3.01, if Nabisco shall furnish to the
Holders of Registrable Securities that have made such request a
certified resolution of the Board of Directors of Nabisco (adopted by
the affirmative vote of a majority of the directors not designated by
the Holdings Entities) stating that in the Board of Directors' good
faith judgment it would (because of the existence of, or in
anticipation of, any acquisition or financing activity, or the
unavailability for reasons beyond Nabisco's reasonable control of any
required financial statements, or any other event or condition of
similar significance to Nabisco) be significantly disadvantageous (a
"Disadvantageous Condition") to Nabisco for such a registration
statement to be maintained effective, or to be filed and become
effective, and setting forth the general reasons for such judgment,
Nabisco shall be entitled to cause such registration statement to be
withdrawn and the effectiveness of such registration statement
terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice of
which Nabisco shall promptly deliver to such Holders). Upon receipt
of any such notice of a Disadvantageous Condition, such Holders shall
promptly discontinue use of the prospectus contained in such
registration statement and, if so directed by Nabisco, each such
Holder will deliver to Nabisco all copies, other than permanent file
copies then in such Holder's possession, of the prospectus then
covering such Registrable Securities current at the time of receipt
of such notice; provided, that the filing of any such registration
statement may not be delayed for a period in excess of six months due
to the occurrence of any particular Disadvantageous Condition;
(ii) after any Holdings Ownership Reduction, the Holders of
Registrable Securities may collectively exercise their rights under
this Section 3.01 on not more than three occasions (it being
acknowledged that prior to any Holdings Ownership Reduction, there
shall be no limit to the number of occasions on which such Holders
(other than any Holdings Transferees and their Affiliates (other than
Holdings Entities)) may exercise such rights); and
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(iii) the Holders of Registrable Securities shall not have the
right to exercise registration rights pursuant to this Section 3.01
in any six-month period following the registration and sale of
Registrable Securities effected pursuant to a prior exercise of the
registration rights provided in this Section 3.01.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by a Holder of Registrable Securities
pursuant to this Section 3.01 shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless it
has become effective, (ii) if after it has become effective such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof, the
Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the
related registration statement or (iii) if the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied or waived other than by reason of
some act or omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this Section 3.01
shall involve, in whole or in part, an underwritten offering, the Holders of a
majority of the Registrable Securities to be registered shall have the right
to designate an underwriter or underwriters as the lead or managing
underwriters of such underwritten offering and, in connection with each
registration pursuant to this Section 3.01, such Holders may select one
counsel to represent all such Holders.
(d) Nabisco shall have the right to cause the registration of
additional equity securities for sale for the account of any Person
(including, without limitation, Nabisco and any existing or former directors,
officers or employees of the Nabisco Entities) in any registration of
Registrable Securities requested by the Holders pursuant to paragraph (a)
above; provided, that if such Holders are advised in writing (with a copy to
Nabisco) by a nationally recognized investment banking firm selected by such
Holders (which shall be the lead underwriter or a managing underwriter in the
case of an underwritten offering) that, in such firm's good faith view, all or
a part of such additional equity securities cannot be sold and the inclusion
of such additional equity securities in such registration would be likely to
have an adverse effect on the price, timing or distribution of the offering
and sale of the Registrable Securities then contemplated by any Holder, the
registration of such additional equity securities or part thereof shall not be
permitted. The Holders with respect to the Registrable Securities to be
offered may require that any such additional equity securities be included in
the offering proposed by such Holders on the same conditions as the
Registrable Securities
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that are included therein. If the number of Registrable Securities requested
to be included in a registration statement by the Holders thereof exceeds the
number which, in the good faith view of such investment banking firm, can be
sold, the number shall be allocated pro rata among the requesting Holders on
the basis of the relative number of Registrable Securities then held by each
such Holder (provided that any number in excess of a Holder's request may be
reallocated among the remaining requesting Holders in a like manner).
SECTION 3.02. Piggyback Registration. In the event that Nabisco at
any time after the date hereof proposes to register any of its Common Stock,
any other of its equity securities or securities convertible into or
exchangeable for its equity securities (collectively, "Other Securities")
under the Securities Act, whether or not for sale for its own account, in a
manner that would permit registration of Registerable Securities for sale for
cash to the public under the Securities Act, it shall at each such time give
prompt written notice to each Holder of Registrable Securities of its
intention to do so and of the rights of such Holder under this Section 3.03.
Subject to the terms and conditions hereof, such notice shall offer each such
Holder the opportunity to include in such registration statement such number
of Registerable Securities as such Holder may request. Upon the written
request of any such Holder made within 15 days after the receipt of Nabisco's
notice (which request shall specify the number of Registrable Securities
intended to be disposed of and the intended method of disposition thereof),
Nabisco shall use its best efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities
Act of all Registerable Securities which Nabisco has been so requested to
register, to the extent required to permit the disposition (in accordance with
such intended methods thereof) of the Registrable Securities so requested to
be registered; provided, that:
(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, Nabisco
shall determine for any reason not to register the Other Securities, Nabisco
may, at its election, give written notice of such determination to such
Holders and thereupon Nabisco shall be relieved of its obligation to register
such Registrable Securities in connection with the registration of such Other
Securities, without prejudice, however, to the rights of the Holders of
Registrable Securities immediately to request that such registration be
effected as a registration under Section 3.01 to the extent permitted
thereunder;
(b) if the registration referred to in the first sentence of this
Section 3.03 is to be an underwritten registration on behalf of Nabisco, and a
nationally recognized investment banking firm selected by Nabisco advises
Nabisco in writing that, in such firm's good faith view, all or a part of such
Registrable
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Securities cannot be sold and inclusion of such Registrable Securities in such
registration would be likely to have an adverse effect upon the price, timing
or distribution of the offering and sale of the Other Securities then
contemplated, Nabisco shall include in such registration: (i) first, all Other
Securities Nabisco proposes to sell for its own account ("Company
Securities"), (ii) second, up to the full number of Registrable Securities
held by Holders constituting Holdings Entities of Registrable Securities that
are requested to be included in such registration (Registrable Securities that
are so held being sometimes referred to herein as "Holder Securities") in
excess of the number of Company Securities to be sold in such offering which,
in the good faith view of such investment banking firm, can be sold without
adversely affecting such offering (and (x) if such number is less than the
full number of such Holder Securities, such number shall be allocated by
Holdings among such Holdings Entities and (y) in the event that such
investment banking firm advises that less than all of such Holder Securities
may be included in such offering, such Holdings Entities may withdraw their
request for registration of their Registrable Securities under this Section
3.03 and 90 days subsequent to the effective date of the registration
statement for the registration of such Other Securities request that such
registration be effected as a registration under Section 3.01 to the extent
permitted thereunder), (iii) third, up to the full number of Registrable
Securities held by Holders (other than Holdings Entities) of Registrable
Securities that are requested to be included in such registration in excess of
the number of Company Securities and Holder Securities to be sold in such
offering which, in the good faith view of such investment banking firm, can be
so sold without so adversely affecting such offering (and (x) if such number
is less than the full number of such Registrable Securities, such number shall
be allocated pro rata among such Holders on the basis of the number of
Registrable Securities requested to be included therein by each such Holder
and (y) in the event that such investment banking firm advises that less than
all of such Registrable Securities may be included in such offering, such
Holders may withdraw their request for registration of their Registrable
Securities under this Section 3.03 and 90 days subsequent to the effective
date of the registration statement for the registration of such Other
Securities request that such registration be effected as a registration under
Section 3.01 to the extent permitted thereunder), and (iv) fourth, up to the
full number of the Other Securities (other than Company Securities), if any,
in excess of the number of Company Securities and Registrable Securities to be
sold in such offering which, in the good faith view of such investment banking
firm, can be so sold without so adversely affecting such offering (and, if
such number is less than the full number of such Other Securities, such number
shall be allocated pro rata among the holders of such Other Securities (other
than Company Securities) on the basis of the number of securities requested to
be included therein by each such holder);
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(c) if the registration referred to in the first sentence of this
Section 3.03 is to be an underwritten secondary registration on behalf of
holders of Other Securities (the "Other Holders"), and the lead underwriter or
managing underwriter advises Nabisco in writing that in their good faith view,
all or a part of such additional securities cannot be sold and the inclusion
of such additional securities in such registration would be likely to have an
adverse effect on the price, timing or distribution of the offering and sale
of the Other Securities then contemplated, Nabisco shall include in such
registration the number of securities (including Registrable Securities) that
such underwriters advise can be so sold without adversely affecting such
offering, allocated pro rata among the Other Holders and the Holders of
Registrable Securities on the basis of the number of securities (including
Registrable Securities) requested to be included therein by each Other Holder
and each Holder of Registrable Securities; provided, that if such registration
statement is to be filed at any time after an Holdings Ownership Reduction, if
such Other Holders have requested that such registration statement be filed
pursuant to demand registration rights granted to them by Nabisco, Nabisco
shall include in such registration (1) first, Other Securities sought to be
included therein by the Other Holders pursuant to the exercise of such demand
registration rights, (2) second, the number of Holder Securities sought to be
included in such registration in excess of the number of Other Securities
sought to be included in such registration by the Other Holders which in the
good faith view of such investment banking firm, can be so sold without so
adversely affecting such offering (and (x) if such number is less than the
full number of such Holder Securities, such number shall be allocated by
Holdings among such Holdings Entities and (y) in the event that such
investment banking firm advises that less than all of such Holder Securities
may be included in such offering, such Holdings Entities may withdraw their
request for registration of their Registrable Securities under this Section
3.03 and 90 days after the effective date of the registration statement for
the registration of such Other Securities request that such registration be
effected as a registration under Section 3.01 to the extent permitted
thereunder) and (3) third, the number of Registrable Securities sought to be
included in such registration by Holders (other than Holdings Entities) of
Registrable Securities in excess of the number of Other Securities and the
number of Holder Securities sought to be included in such registration which,
in the good faith view of such investment banking firm, can be so sold without
so adversely affecting such offering (and (x) if such number is less than the
full number of such Registrable Securities, such number shall be allocated pro
rata among such Holders on the basis of the number of Registrable Securities
requested to be included therein by each such Holder and (y) in the event that
such investment banking firm advises that less than all of such Registrable
Securities may be included in such offering, such Holders may withdraw their
request for registration of their Registrable Securities under this Section
3.03 and 90 days after the effective date of the registration statement for
the registration of such
13
Other Securities request that such registration be effected as a registration
under Section 3.0l to the extent permitted thereunder);
(d) Nabisco shall not be required to effect any registration of
Registrable Securities under this Section 3.03 incidental to the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock option or
other executive or employee benefit or compensation plans; and
(e) no registration of Registrable Securities effected under this
Section 3.03 shall relieve Nabisco of its obligation to effect a registration
of Registrable Securities pursuant to Section 3.01.
SECTION 3.03. Expenses. Except as provided herein, Nabisco shall pay
all Registration Expenses with respect to a particular offering (or proposed
offering). Notwithstanding the foregoing, each Holder and Nabisco shall be
responsible for its own internal administrative and similar costs, which shall
not constitute Registration Expenses.
SECTION 3.04. Registration and Qualification. If and whenever Nabisco
is required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 3.01, 3.02 or 3.03, Nabisco shall as
promptly as practicable:
(a) prepare, file and use its best efforts to cause to become
effective a registration statement under the Securities Act relating to the
Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of nine months after such registration statement becomes effective;
provided, that such nine-month period shall be extended for such number of
days that equals the number of days elapsing from (x) the date the written
notice contemplated by paragraph (f) below is given by Nabisco to (y) the date
on which Nabisco delivers to the Holders of Registrable Securities the
supplement or amendment contemplated by paragraph (f) below;
14
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as the Holders of
Registrable Securities or such underwriter may reasonably request, and a copy
of any and all transmittal letters or other correspondence to or received
from, the SEC or any other governmental agency or self-regulatory body or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(d) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Holders of such Registrable Securities
or any underwriter to such Registrable Securities shall request, and use its
best efforts to obtain all appropriate registrations, permits and consents in
connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Holders of Registrable Securities or any
such underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement; provided, that
Nabisco shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any such jurisdiction wherein it is not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of
Registrable Securities included in such registration (each, a "Selling
Holder") and to any underwriter of such Registrable Securities an opinion of
counsel for Nabisco addressed to each Selling Holder and dated the date of the
closing under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement), and
(ii) use its best efforts to furnish to each Selling Holder a "cold comfort"
letter addressed to each Selling Holder and signed by the independent public
accountants who have audited the financial statements of Nabisco included in
such registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities and such other matters as the Selling Holders may
reasonably request and, in the case of such accountants' letter, with respect
to events subsequent to the date of such financial statements;
15
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration pursuant
to Sections 3.01, 3.02 or 3.03 is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such 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, in light of the circumstances under which they were made, not
misleading, and (ii) of any request by the SEC or any other regulatory body or
other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case, at the request of the Selling Holders prepare and furnish to
the Selling Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include 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 light of the circumstances under which they are made,
not misleading:
(g) if reasonably requested by the lead or managing underwriters,
use its best efforts to list all such Registrable Securities covered by such
registration on each securities exchange and automated inter-dealer quotation
system on which a class of common equity securities of Nabisco is then listed;
(h) to the extent reasonably requested by the lead or managing
underwriters send appropriate officers of Nabisco to attend any "road shows"
scheduled in connection with any such registration, with all out-of-pocket
costs and expense incurred by Nabisco or such officers in connection with such
attendance to be paid by Nabisco; and
(i) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected
pursuant to Sections 3.01, 3.02 or 3.03 unlegended certificates representing
ownership of the Registrable Securities in registered form being sold in such
denominations as shall be requested by the Selling Holders or the
underwriters.
SECTION 3.05. Conversion of Other Securities, Etc. In the event that
any Holder offers any options, rights, warrants or other securities issued by
it or any other Person that are offered with, convertible into or exercisable
or exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue
to be eligible for registration pursuant to Sections 3.01 and 3.03.
16
SECTION 3.06. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant
to a registration requested under this Article III, Nabisco shall enter into
an underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties by Nabisco and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 3.08, and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 3.05(e). The Selling Holders on whose behalf
the Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, Nabisco to and for the
benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other terms
and provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnification and contribution provisions substantially to the effect and to
the extent provided in Section 3.08.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article III, Nabisco shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of Nabisco with its
officers and the independent public accountants who have certified the
financial statements of Nabisco as shall be necessary, in the opinion of such
Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
SECTION 3.07. Indemnification and Contribution. (a) In the case of
each offering of Registrable Securities made pursuant to this Article III,
Nabisco agrees to indemnify and hold harmless, to the extent permitted by law,
each Selling Holder, each underwriter of Registrable Securities so offered and
each Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act and the officers, directors, affiliates,
employees and agents of each of the foregoing, against any and all losses,
liabilities, costs (including reasonable attorney's fees and disbursements),
claims and damages, joint or several, to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions
17
or proceedings in respect thereof, whether or not such indemnified Person is a
party thereto) arise out of or are based upon any untrue statement by Nabisco
or alleged untrue statement by Nabisco of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by Nabisco or at
its direction, or any amendment thereof or supplement thereto, or in any
document incorporated by reference therein, or any omission by Nabisco or
alleged omission by Nabisco to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that Nabisco shall not be liable to any Person in any such
case to the extent that any such loss, liability, cost, claim or damage arises
out of or relates to any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance upon
and in conformity with information relating to a Selling Holder, another
holder of securities included in such registration statement or underwriter
furnished to Nabisco by or on behalf of such Selling Holder, other holder or
underwriter specifically for use in the registration statement (or in any
preliminary or final prospectus included therein), offering memorandum or
other offering document, or any amendment thereof or supplement thereto. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Selling Holder, any other holder or
any underwriter and shall survive the transfer of such securities. The
foregoing indemnity agreement is in addition to any liability that Nabisco may
otherwise have to each Selling Holder, other holder or underwriter of the
Registrable Securities or any controlling person of the foregoing and the
officers, directors, affiliates, employees and agents of each of the
foregoing; provided, further, that, in the case of an offering with respect to
which a Selling Holder has designated the lead or managing underwriters (or a
Selling Holder is offering Registrable Securities directly, without an
underwriter), this indemnity does not apply to any loss, liability, cost,
claim or damage arising out of or relating to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
or offering memorandum if a copy of a final prospectus or offering memorandum
was not sent or given by or on behalf of any underwriter (or such Selling
Holder or other holder, as the case may be) to such Person asserting such
loss, liability, cost, claim or damage at or prior to the written confirmation
of the sale of the Registrable Securities as required by the Securities Act
and such untrue statement or omission had been corrected in such final
prospectus or offering memorandum.
(b) In the case of each offering made pursuant to this Agreement,
each Selling Holder, by exercising its registration rights hereunder, agrees
to indemnify and hold harmless, and to cause each underwriter of Registrable
Securities included in such offering to indemnify and hold harmless (in the
same manner and
18
to the same extent as set forth in Section 3.08(a)) Nabisco, each other
underwriter who participates in such offering, each other Selling Holder or
other holder with securities included in such offering and in the case of an
underwriter, such Selling Holder or other holder, and each Person, if any, who
controls any of the foregoing within the meaning of the Securities Act and the
officers, directors, affiliates, employees and agents of each of the
foregoing, against any and all losses, liabilities, costs, claims and damages
to which they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation commenced
or threatened, insofar as such losses, liabilities, costs, claims and damages
(or actions or proceedings in respect thereof, whether or not such indemnified
Person is a party thereto) arise out of or are based upon any untrue statement
or alleged untrue statement by such Selling Holder or underwriter, as the case
may be, of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or in any offering
memorandum or other offering document relating to the offering and sale of
such Registrable Securities prepared by Nabisco or at its direction, or any
amendment thereof or supplement thereto, or any omission by such Selling
Holder or underwriter, as the case may be, or alleged omission by such Selling
Holder or underwriter, as the case may be, of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that such untrue statement of a material fact
is contained in, or such material fact is omitted from information relating to
such Selling Holder or underwriter, as the case may be, furnished to Nabisco
by or on behalf of such Selling Holder or underwriter, as the case may be,
specifically for use in such registration statement (or in any preliminary or
final prospectus included therein), offering memorandum or other offering
document. The foregoing indemnity is in addition to any liability which such
Selling Holder or underwriter, as the case may be, may otherwise have to
Nabisco, or controlling persons and the officers, directors, affiliates,
employees, and agents of each of the foregoing; provided, however, that, in
the case of an offering made pursuant to this Agreement with respect to which
Nabisco has designated the lead or managing underwriters (or Nabisco is
offering securities directly, without an underwriter), this indemnity does not
apply to any loss, liability, cost, claim, or damage arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus or offering memorandum if a copy of a
final prospectus or offering memorandum was not sent or given by or on behalf
of any underwriter (or Nabisco, as the case may be) to such Person asserting
such loss, liability, cost, claim or damage at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in
such final prospectus or offering memorandum.
19
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
part in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided, that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) above except to the extent that
the indemnifying party was actually prejudiced by such failure, and in no
event shall such failure relieve the indemnifying party from any other
liability that it may have to such indemnified party. If any such claim or
action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified party and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 3.08 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. Any indemnifying party against whom indemnity may be sought
under this Section 3.08 shall not be liable to indemnify an indemnified party
if such indemnified party settles such claim or action without the consent of
the indemnifying party. The indemnifying party may not agree to any settlement
of any such claim or action as the result of which any remedy or relief other
than solely for monetary damages for which the indemnifying party shall be
responsible hereunder shall be applied to or against the indemnifying party,
without the prior written consent of the indemnifying party, which consent
shall not be unreasonably withheld. In any action hereunder as to which the
indemnifying party has assumed the defense thereof with counsel satisfactory
to the indemnified party, the indemnified party shall continue to be entitled
to participate in the defense thereof, with counsel of its own choice, but the
indemnifying party shall not be obligated hereunder to reimburse the
indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 3.08 shall
for any reason be unavailable (other than as a result of its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, cost, claim or
damage in such proportion as shall be appropriate to reflect (i) the relative
benefits received by the indemnifying party on the one hand and the
indemnified party on the other hand or (ii) if the
20
allocation provided by clause (i) above is not permitted by applicable law,
the relative benefits and the relative fault of the indemnifying party on the
one hand and the indemnified party on the other with respect to the statements
or omissions which resulted in such loss, liability, cost, claim or damage as
well as any other relevant equitable considerations. The relative benefits
received by the indemnifying party and the indemnified party shall be deemed
to be in the same respective proportion as the net proceeds (before deducting
expenses) of the offering received by such party (or, in the case of an
underwriter, such underwriter's discounts and commissions) bear to the
aggregate offering price of the Registrable Securities or Other Securities.
The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the indemnifying
party on the one hand or the indemnified party on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission, but not by reference to any
indemnified party's stock ownership in Nabisco. The amount paid or payable by
an indemnified party as a result of the loss, cost, claim, damage or
liability, or action in respect thereof, referred to above in this paragraph
(d) shall be deemed to include, for purposes of this paragraph (d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent 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.
(e) Indemnification and contribution similar to that specified in
the preceding paragraphs of this Section 3.08 (with appropriate modifications)
shall be given by Nabisco, the Selling Holders and underwriters with respect
to any required registration or other qualification of securities under any
state law or regulation or governmental authority.
(f) The obligations of the parties under this Section 3.08 shall be
in addition to any liability which any party may otherwise have to any other
party.
SECTION 3.08. Rule 144 and Form S-3. Commencing 90 days after the
date hereof, Nabisco shall ensure that the conditions to the availability of
Rule 144 set forth in paragraph (c) thereof shall be satisfied. Upon the
request of any Holder of Registrable Securities, Nabisco will deliver to such
Holder a written statement as to whether it has complied with such
requirements. Nabisco further agrees to use its reasonable efforts to cause
all conditions to the availability of Form S-3 (or any successor form) under
the Securities Act of the filing of registration statements under this
Agreement to be met as soon as practicable after the date hereof.
Notwithstanding anything contained in this Section 3.09, Nabisco
21
may deregister under Section 12 of the Securities Exchange Act of 1934, as
amended, if it then is permitted to do so pursuant to said Act and the rules
and regulations thereunder.
SECTION 3.09. Transfer of Registration Rights. Any Holder may
transfer all or any portion of its rights under Article III to any transferee
of a number of Registrable Securities owned by such Holder exceeding three
percent (3%) of the outstanding class or series of such securities at the time
of transfer (each transferee that receives such minimum number of Registrable
Securities, a "Transferee"); provided, that each Transferee of Registrable
Securities to which Registrable Securities are transferred, sold or assigned
directly by a Holdings Entity (such Transferee, an "Holdings Transferee"),
together with any Affiliate of such Holdings Transferee (and any subsequent
direct or indirect Transferees of Registrable Securities from such Holdings
Transferee and any Affiliates (other than Holdings Entities) thereof), shall
be entitled to request the registration of Registrable Securities pursuant to
Section 3.01 only once. Any transfer of registration rights pursuant to this
Section 3.10 shall be effective upon receipt by Nabisco of (i) written notice
from such Holder stating the name and address of any Transferee and
identifying the number of Registrable Securities with respect to which the
rights under this Agreement are being transferred and the nature of the rights
so transferred and (ii) a written agreement from such Transferee to be bound
by the terms of this Article III and Sections 5.03, 5.04, 5.09, 5.10, and 5.11
of this Agreement. The Holders may exercise their rights hereunder in such
priority as they shall agree upon among themselves.
SECTION 3.10. Holdback Agreement. If any registration pursuant to
this Article III shall be in connection with an underwritten public offering
of Registrable Securities, each Selling Holder agrees not to effect any public
sale or distribution, including any sale under Rule 144, of any equity
security of Nabisco or any security convertible into or exchangeable or
exercisable for any equity security of Nabisco, in the case of Registrable
Securities, otherwise than through the registered public offering then being
made), within 90 days (or such lesser period as the lead or managing
underwriters may permit) after the effective date of the registration
statement (or the commencement of the offering to the public of such
Registrable Securities in the case of Rule 415 offerings). Nabisco hereby also
so agrees and agrees to cause each other holder of equity securities or debt
securities, as the case may be, or securities convertible into or exchangeable
or exercisable for such securities (other than in the case of equity
securities, under employee stock plans) purchased from Nabisco otherwise than
in a public offering to so agree.
22
ARTICLE 4
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01. No Violations. (a) For so long as the Ownership
Percentage is equal to or greater than 50%, Nabisco covenants and agrees that
it will not take any action or enter into any commitment or agreement which
may reasonably be anticipated to result, with or without notice and with or
without lapse of time or otherwise, in a contravention or event of default by
any Holdings Entity of (i) any provisions of applicable law or regulation,
including but not limited to provisions pertaining to the Internal Revenue
Code of 1986, as amended, or the Employee Retirement Income Security Act of
1974, as amended, (ii) any provision of Holdings' certificate of incorporation
or bylaws, (iii) any credit agreement or other material instrument binding
upon Holdings, or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over Holdings or any of its respective
assets.
(b) Nabisco and Holdings agree to provide to the other any
information and documentation requested by the other for the purpose of
evaluating and ensuring compliance with Section 4.01(a) hereof.
(c) Notwithstanding the foregoing Sections 4.01(a) and 4.01(b),
nothing in this Agreement is intended to limit or restrict in any way the
ability of Holdings to effect, restrict or limit any action or proposed action
of Nabisco, including, but not limited to, the incurrence by Nabisco of
indebtedness, based upon Holdings' internal policies or other factors.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Limitation of Liability. Neither Holdings nor Nabisco
shall be liable to the other for any special, indirect, incidental or
consequential damages of the other arising in connection with this Agreement.
SECTION 5.02. Subsidiaries. Holdings agrees and acknowledges that
Holdings shall be responsible for the performance by each Holdings Entity of the
obligations hereunder applicable to such Holdings Entity.
SECTION 5.03. Amendments. This Agreement may not be amended or
terminated orally, but only by a writing duly executed by or on behalf of the
parties hereto. Any such amendment shall be validly and sufficiently authorized
23
for purposes of this Agreement if it is signed on behalf of Holdings and
Nabisco by any of their respective presidents or vice presidents.
SECTION 5.04. Term. This Agreement shall remain in effect until all
Registrable Securities held by Holders have been transferred by them to
Persons other than Transferees; provided, that the provisions of Section 3.08
shall survive any such expiration.
SECTION 5.05. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other
than those to which it is so determined to be invalid, illegal or
unenforceable, shall remain in full force and effect to the fullest extent
permitted by law and shall not be affected thereby, unless such a construction
would be unreasonable.
SECTION 5.06. Notices. All notices and other communications required
or permitted hereunder shall be in writing, shall be deemed duly given upon
actual receipt, and shall be delivered (a) in person, (b) by registered or
certified mail, postage prepaid, return receipt requested, or (c) by facsimile
or other generally accepted means of electronic transmission (provided that a
copy of any notice delivered pursuant to this clause (c) shall also be sent
pursuant to clause (b), addressed as follows:
(a) If to Nabisco, to:
Nabisco Holdings Corp.
7 Campus Drive
Parsippany, New Jersey 07054
Attention: General Counsel
Fax: (973) 539-9150
(b) If to Holdings, to:
Nabisco Group Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019-6013
Attention: General Counsel
Fax: (212) 969-9917
24
(c) If to RJRTH, to:
R.J. Reynolds Tobacco Holdings, Inc.
401 North Main Street
Winston-Salem, NC 27102
Attention: General Counsel
Fax: (336) 741-2998
with a copy to:
Nabisco Group Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019-6013
Attention: Treasurer
Fax: (212) 969-9112
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
SECTION 5.07. Further Assurances. Holdings and Nabisco shall execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be necessary or advisable
to carry out their obligations under this Agreement and under any exhibit,
document or other instrument delivered pursuant hereto.
SECTION 5.08. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original instrument,
but all of which together shall constitute but one and the same agreement.
SECTION 5.09. Governing Law. This Agreement and the transactions
contemplated hereby shall be construed in accordance with, and governed by, the
internal laws of the State of New York.
SECTION 5.10. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
SECTION 5.11. Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement, express or
implied, is intended to confer upon any other person or entity any benefits,
rights or remedies.
SECTION 5.12. Specific Performance. The parties hereto acknowledge
and agree that irreparable damage would occur in the event that any of the
provisions
25
of this Agreement were not performed in accordance with their specific terms
or were otherwise breached. Accordingly, it is agreed that they shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions hereof
in any court of competent jurisdiction in the United States or any state
thereof, in addition to any other remedy to which they may be entitled at law
or equity.
SECTION 5.13. Termination of Prior Agreement. RJRTH and Nabisco
hereby agree to terminate the Corporate Agreement dated as of January 26, 1995
between RJRTH and Nabisco, without liability on the part of either such party
except for a willful breach of any provision of that agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
RJR NABISCO HOLDINGS CORP.
By: /s/ William L. Rosoff
-------------------------------------
Name: William L. Rosoff
Title: Senior Vice President
and General Counsel
NABISCO HOLDINGS CORP.
By: /s/ James A. Kirkman III
-------------------------------------
Name: James A. Kirkman III
Title: Executive Vice President,
General Counsel and
Secretary
R.J. REYNOLDS TOBACCO HOLDINGS,
INC.
By: /s/ William L. Rosoff
-------------------------------------
Name: William L. Rosoff
Title: Senior Vice President
and General Counsel
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