EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement, dated as of April 6, 1995 (this
"Agreement"), is among E.I. du Pont de Nemours and Company, a Delaware
corporation (the "Company"), The Seagram Company Ltd., a Canadian corporation
("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned
subsidiary of S ("Subsidiary").
WHEREAS, pursuant to an Agreement, of even date herewith (the "Redemption
Agreement"), among the Company, S and Subsidiary, Subsidiary is transferring to
the Company certain shares of Common Stock, par value $0.60 per share, of the
Company (the "Common Stock"), in part in exchange for Warrants (as defined in
the Redemption Agreement); and
WHEREAS, in connection with the Redemption Agreement, the Company, S and
Subsidiary have agreed to enter into this registration rights agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows.
Section 1. Definitions.
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(a) Capitalized terms used but not defined in this Agreement
have the meanings assigned to such terms in the Redemption Agreement.
(b) "Holder" means any holder of Registrable Securities (other
than the Company).
(c) "Registrable Securities" means each of the following: (i)
the Warrants; (ii) any shares of Common Stock or other securities issued upon
exercise of the Warrants; (iii) the Retained Shares; and (iv) any other
securities of the Company issued in respect of any of the foregoing securities,
by way of stock dividend, stock split or other distribution, recapitalization or
reclassification. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities if (i) any Disposition of such
securities shall have been effected (other than a Disposition pursu-
ant to Section 5.3(a) of the Redemption Agreement); (ii) a registration
statement with respect to such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement; or (iii) such securities shall have ceased to
be outstanding or, in the case of any Warrants and any shares of Common Stock or
other securities issuable upon exercise of such Warrants, such Warrants shall
have expired unexercised.
(d) "S Securities" means any options, rights, warrants or
securities issued by S or an Affiliate thereof.
(e) "SEC" means the United States Securities and Exchange
Commission.
(f) "Securities Act" means the Securities Act of 1933, as
amended.
Section 2. Request for Registration.
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(a) At any time after the date hereof, S may make a written
request to the Company for registration under the Securities Act with respect to
all or part of the Registrable Securities (a "Registration"); provided, that in
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the case of Registrable Securities consisting of securities other than Warrants,
the Company shall not be required to effect a Registration of part of such
Registrable Securities unless the Registrable Securities requested to be
registered have a fair market value of at least $500 million; provided, further,
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that in the case of Warrants, the Company shall not be required to effect a
Registration of part of such Warrants unless the Warrants requested to be
registered have a fair market value of at least $40 million. For purposes of
this Section 2, the fair market value of Registrable Securities shall be based
on the closing price per share or per unit of such Registrable Securities during
the 20 consecutive trading days immediately preceding the Company's receipt of
the request for a Registration of such Registrable Securities. The closing
price for each such day shall be the last sale price regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the New York Stock Exchange, or, if such
Registrable Securities are not listed or admitted to trading on such exchange,
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on the principal national securities exchange on which such Registrable
Securities are listed or admitted to trading, or if such Registrable Securities
are not listed or admitted to trading on any national securities exchange but
are designated as national market system securities by the National Association
of Securities Dealers ("NASD"), the last sale price, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, in
either case as reported on the NASD Automated Quotation/National Market System,
or, if the Registrable Securities are not so designated as national market
system securities, the average of the highest reported bid and lowest reported
asked prices as furnished by the NASD or similar organization if the NASD is no
longer reporting such information. If none of the foregoing market data is
available for the Warrants, the fair market value of the Warrants shall be
determined by two nationally recognized investment banking firms, one firm to be
selected by each of S and the Company, or in the event such firms are unable to
agree, by a third nationally recognized investment banking firm selected by such
firms. Such determination shall be made using the valuation methodology set
forth in Exhibit H to the Redemption Agreement and such fair market value shall
be as of the date of the Company's receipt of the request for a Registration of
such Warrants. In connection with any determination of fair market value
pursuant to this Section 2(a), each party will bear the fees and expenses of the
investment banking firm selected by it and the parties will bear equally the
fees and expenses of any third investment banking firm. No request for
registration shall be made pursuant to this Section 2(a), (x) in respect of any
Registrable Securities unless S believes in good faith, based on consultation
with the proposed managing underwriter (or, if none has then been chosen, a
nationally recognized investment bank), that S or its Affiliates will be able to
sell such Registrable Securities (or S Securities exchangeable or exercisable
therefor) pursuant to such registration and (y) except with respect to Retained
Shares, prior to May 15, 1996.
(b) Each Registration (other than a Shelf Registration permitted
by subsection (d) below) shall be effected through an offering underwritten on a
"firm commitment" basis by one or more nationally recognized investment banking
firms (an "Underwritten Registration").
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(c) If S or an Affiliate thereof offers any options, rights,
warrants or other securities issued by S or an Affiliate thereof that are
offered with, or convertible into or exercisable or exchangeable for any
Registrable Securities (an "S Offering"), then such Registrable Securities shall
be eligible for Registration hereunder.
(d) At the request of S, a Registration shall be a shelf
registration pursuant to Rule 415 under the Securities Act or any successor rule
thereto (a "Shelf Registration"); provided that such Shelf Registration relates
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to (i) Registrable Securities issuable upon exercise of Non-S Warrants (as such
term is defined in the Warrant Agreement); (ii) Registrable Securities which are
deliverable by S or any of its Affiliates upon conversion, exercise or exchange
of S Securities previously sold; (iii) S Warrants which S or any of its
Affiliates has the right to dispose of following the Company's failure to
exercise its right to purchase such S Warrants pursuant to Section 5.4(I) of the
Redemption Agreement; or (iv) any other Registrable Securities deliverable by S
or any of its Affiliates upon conversion, exercise or exchange of S Securities
which are themselves being registered on a shelf registration.
Section 3. Number of Registrations. The Company shall not be
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obligated to effect more than (i) ten Registrations with respect to the Warrants
or (ii) two Registrations during any 12 consecutive month period with respect to
Registrable Securities other than Warrants. The Company shall not be deemed to
have effected a Registration unless and until such Registration is declared
effective.
Section 4. Selection of Underwriters. The Company will select the
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investment banker or bankers to administer the offering (other than an S
Offering) made in connection with each Underwritten Registration; provided, that
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such investment banker or bankers shall be reasonably satisfactory to S. S will
select the investment banker or bankers to administer any underwritten S
Offering made in connection with a Registration; provided, that such investment
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banker or bankers shall be reasonably satisfactory to the Company.
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Section 5. Registration Statements. Subject to the Company's right,
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to the extent applicable pursuant to the Redemption Agreement, to purchase all
of the Registrable Securities requested to be registered (the "Company
Repurchase Right"), the Company agrees to file as soon as reasonably practicable
after a request for a Registration, but in no event later than the later of (x)
sixty days after such request for a Registration and (y) in the event the
Company exercises its privilege to delay the filing of a registration statement
pursuant to Section 6 hereof, the end of the period during which the Company
delays such filing, a registration statement on any appropriate form with
respect to all of the Registrable Securities requested to be included in such
Registration. Subject to Section 6 hereof, the Company agrees to use its
reasonable best efforts to have the Registration declared effective as soon as
practicable after such filing and to keep the Registration continuously
effective (i) in the case of a Registration other than a Shelf Registration,
until the ninetieth day following the date on which such Registration is
declared effective; (ii) in the case of a Shelf Registration described in
Section 2(d)(i), for so long as the Non-S Warrants to which such Shelf
Registration relates are exercisable; (iii) in the case of a Shelf Registration
described in Section 2(d)(ii), April 1, 2000; (iv) in the case of a Shelf
Registration described in Section 2(d)(iii), until the 60th day following the
last day on which the Company had the right to deliver a Section 5.4(I)
Acceptance Notice with respect to such S Warrants; and (v) in the case of a
Shelf Registration described in Section 2(d)(iv), until the earlier of (a) six
months after a registration statement with respect to such Shelf Registration is
filed and (b) the sale of all S Securities registered in such shelf
registration; provided, that the period in clause (v) shall be extended in
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respect of any Registrable Securities issuable upon exercise, exchange or
conversion of the S Securities registered under the Shelf Registration referred
to in Section 2(d)(iv) to the date on which a Shelf Registration described in
Section 2(d)(ii) in respect of such Registrable Securities is required to remain
effective pursuant to clause (iii) above so long as the Shelf Registration
described in Section 2(d)(iv) could, under the rules, regulations and policies
of the SEC, be used in lieu of one described in Section 2(d)(ii); provided
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further, that if for any reason the effectiveness of a Registration is
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suspended, the period
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during which such Registration is required to be kept effective shall be
extended by the aggregate number of days of each such suspension; provided,
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further, that any Registration may be terminated at such time as all of the
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Registrable Securities included therein cease to be Registrable Securities.
Section 6. Company's Ability to Postpone. The Company shall have the
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right to delay the filing of a registration statement under Section 5 hereof if
the Company furnishes S with a certificate signed by the Chief Executive Officer
of the Company stating that the Company has commenced registration procedures
with respect to, or intends in good faith to effect, a primary offering of
Common Stock (or securities convertible into or exchangeable or exercisable for
Common Stock). In such event, the Company may delay such filing under Section 5
hereof until the 90th day following the completion of the Company's offering
(but not more than 180 days in total). The Company shall also have the right to
delay the filing of a registration statement under Section 5 hereof, or the
filing of any amendments to any registration statement filed under Section 5
hereof (other than amendments effected by the filing of reports and documents
incorporated by reference in such registration statement), and shall not be
obligated to request or obtain effectiveness of any registration statement filed
under Section 5 hereof, for up to 90 days if the Company furnishes S with a
certificate signed by the Chief Executive Officer of the Company stating that he
has determined in good faith that effecting the registration at such time is
reasonably likely to interfere with a financing (other than a primary offering
of Common Stock (or securities convertible into or exchangeable or exercisable
for Common Stock)), acquisition, disposition of assets or stock, merger or other
transaction.
Section 7. Holdback Agreements. The Company agrees not to effect
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(except pursuant to a registration of securities on Form S-4 or Form S-8, or any
successor form) any public sale or distribution of any securities similar to
those being registered or issued, as the case may be, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period from the (i) filing of a registration statement pursuant to Section 5
hereof until 90 days after the date on which such registration statement is
first declared
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effective; (ii) filing of a registration statement by S or any Affiliate of S
(other than a shelf registration pursuant to Rule 415 under the Securities Act
or any successor rule thereto (an "S Shelf")) in connection with an S Offering,
until 90 days after the date on which such registration statement is first
declared effective; and (iii) issuance of S Securities in an S Offering pursuant
to an S Shelf, until 90 days after such issuance; provided that such issuances
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shall be effected so as to permit the Company during at least two 90 consecutive
day periods in any 365 consecutive day period to effect the public sale or
distribution of securities similar to those being registered or issued, as the
case may be, or securities convertible into or exchangeable or exercisable for
such securities.
Section 8. Registration Procedures. Subject to Section 6 hereof and
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to the Company Repurchase Right, whenever S has requested that any Registrable
Securities be registered pursuant to Section 2 of this Agreement, the Company
will use its reasonable best efforts to effect the registration of such
Registrable Securities in accordance with the intended method of disposition
thereof as promptly as practicable and, in connection with any such request, the
Company will:
(a) prepare and file with the SEC a registration statement, on
any appropriate form, with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the registration statement as may be necessary to keep
the registration statement effective for as long as such Registration is
required to remain effective pursuant to the terms hereof; cause the prospectus
included therein to be supplemented by any required prospectus supplement, and,
as so supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and use its best efforts to comply with all provisions of the Securities Act,
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder applicable to it with respect to the disposition of
all securities covered by such registration statement in accordance with the in-
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tended methods of disposition thereof set forth in such registration statement;
(c) furnish to S and each underwriter at least one signed copy
of the registration statement and any post-effective amendment thereto, and such
number of conformed copies thereof and such number of copies of the prospectus
included therein (including each preliminary prospectus) and any amendments or
supplements thereto, and any documents incorporated by reference therein, as S
or any underwriter may request;
(d) on or prior to the date on which the registration statement
is declared effective, use its reasonable best efforts to register or qualify
the Registrable Securities covered thereby under such other securities or blue
sky laws of such jurisdictions as S or any underwriter reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to permit the disposition in such jurisdictions of such Registrable
Securities; provided, that the Company will not be required to (i) qualify
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generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to general
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) notify S and each underwriter, at any time when a prospectus
relating to Registrable Securities is required to be delivered by S or such
underwriter under the Securities Act, of the happening of any event as a result
of which the prospectus included in the registration statement relating to such
Registrable Securities contains 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, and the Company will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
(f) notify S and each underwriter (i) when the registration
statement or any post-effective
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amendment to the registration statement, shall have become effective, or any
amendment or supplement to the prospectus shall have been filed, (ii) of the
receipt of any comments from the SEC, (iii) of any request of the SEC to amend
the registration statement or amend or supplement the prospectus or for
additional information and (iv) of any stop order issued or threatened by the
SEC in connection with the registration statement and take all reasonable
actions required to prevent the entry of any such stop order or to remove it if
entered;
(g) enter into customary agreements (including, if appropriate,
an underwriting agreement containing provisions relating to indemnification of,
and by, the Company, S and the underwriters) in form customary for the Company
and other issuers of similar size and quality or otherwise reasonably acceptable
to the Company) and take such other customary actions as S reasonably requests
in order to expedite or facilitate the disposition of such Registrable
Securities;
(h) use its reasonable best efforts to obtain a "cold comfort"
letter from the Company's independent public accountants in form customary for
the Company and other issuers of similar size and quality and covering such
matters as are customarily covered by "cold comfort" letters in connection with
the registration of securities of the Company and other issuers of similar size
and quality;
(i) use its reasonable best efforts to obtain an opinion or
opinions from counsel for the Company in form customary for the Company and
other issuers of similar size and quality;
(j) make available to its security holders, as soon as
reasonably practicable, earnings statements (which need not be audited),
covering a period of twelve months, beginning within three months after the
effective date of the registration statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act;
(k) cooperate with S and each underwriter to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration
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statement and enable such securities to be in such amounts and registered in
such names as S and each underwriter may request;
(l) make available for inspection by representatives of S, by
any underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by S or any underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by S, such underwriter, attorney, accountant or agent in connection
with the registration statement; provided, however, that (i) all non-public,
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confidential or proprietary information disclosed by the Company shall be held
by S, the participating underwriters and their respective representatives,
agents, employees, accountants and attorneys in confidence and not disclosed to
any other party except as required by law and (ii) the Company shall not be
required to disclose any information which it is prohibited by law, rule or
regulation or agreement from disclosing, or which could in its judgment result
in a waiver or loss of any attorney-client privilege to which it may be
entitled; and
(m) if requested by the managing underwriter or agent or S,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or S reasonably requests to be
included therein, including, without limitation, with respect to any other terms
of the underwritten offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or post-
effective amendment as soon as practicable after being notified of the matters
incorporated in such prospectus supplement or post-effective amendment.
The Company may require S to furnish to the Company such information regarding
the distribution of Registrable Securities and such other information relating
to S and the Holders as the Company may from time to time reasonably request in
writing.
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S agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 8(e) hereof, S will, and
will cause each Holder to, forthwith discontinue disposition of Registrable
Securities, if any, held by S or such Holders pursuant to the registration
statement covering such Registrable Securities until S's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 8(e) hereof
and, if so directed by the Company, S will deliver to the Company all copies,
other than permanent file copies, of the prospectus covering such Registrable
Securities that is current at the time of receipt of such notice. In the event
the Company shall give any such notice, the Company shall extend the period
during which such registration statement is required to be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 8(e) hereof
to and including the date S shall have received the copies of the supplemented
or amended prospectus contemplated by Section 8(e) hereof.
Section 9. Registration Expenses. All expenses incident to the
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Company's performance of or compliance with this Agreement (excluding all
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities, all registration and filing fees, all fees and expenses
of counsel, accountants and consultants for S and the Holders, and all fees and
expenses associated with filings required to be made with the NASD (including,
if applicable, the fees and expenses of any "qualified independent underwriter"
as such term is defined in Schedule E to the By-laws of the NASD, and of its
counsel)), including expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), printing expenses (including
expenses of printing certificates for the Registrable Securities in a form
eligible for deposit with the Depositary Trust Company and of printing
prospectuses), messenger and delivery expenses, and the fees and expenses of
counsel for the Company and its independent certified public accountants
(including the expenses of any special audit or "cold comfort" letters required
by or incident to such performance) will be borne by the Company.
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Section 10. Indemnification; Contribution
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(a) The Company agrees to indemnify S and the Holders of
Registrable Securities included in a registration statement effected pursuant to
this Agreement (other than any registration statement covering S Securities
offered in an S Offering) and each person who controls S or such Holders (within
the meaning of the Securities Act) and each of their respective directors,
officers, employees, agents, affiliates and general and limited partners
(including any director, officer, affiliate, employee, agent and controlling
person thereof) against any and all losses, claims, damages and liabilities,
joint or several, and expenses to which S, such Holder, any such director,
officer, employee, agent, affiliate or general or limited partner or any such
controlling person may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages and liabilities (or actions
or proceedings in respect thereof, whether or not such indemnified party is a
party thereto) arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any such registration statement or any
prospectus or preliminary prospectus included therein, or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a prospectus or preliminary prospectus,
in light of the circumstances under which they are made), except to the extent
that such untrue or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with information furnished in writing by
S, any Affiliate of S or any Holder or any such controlling person to the
Company specifically for inclusion therein.
(b) S agrees to indemnify the Company and each person who
controls the Company (within the meaning of the Securities Act) and each of
their respective directors, officers, employees, agents, affiliates and general
and limited partners (including any director, officer, affiliate, employee,
agent and controlling person thereof) against any and all losses, claims,
damages and liabilities, joint or several, and expenses to which the Company or
any such director, officer, employee, agent, affiliate or general or limited
partner
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or any such controlling person may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages and liabilities
(or actions or proceedings in respect thereof, whether or not such indemnified
party is a party thereto) arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any registration statement
covering S Securities offered in an S Offering or any prospectus or preliminary
prospectus included therein, or any amendment or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of a prospectus or preliminary prospectus, in light of the
circumstances under which they are made), except to the extent that such untrue
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished in writing by the Company or
any such controlling person to S or any such Affiliate specifically for
inclusion therein.
(c) S and the Holders of Registrable Securities covered by a
registration statement effected pursuant to this Agreement (other than any
registration statement covering S Securities offered in an S Offering) jointly
and severally agree to indemnify the Company and each person who controls the
Company (within the meaning of the Securities Act) and each of their respective
directors, officers, employees, agents, affiliates and general and limited
partners (including any director, officer, employee, agent, affiliate and
controlling person thereof) against any and all losses, claims, damages and
liabilities, joint or several, and expenses to which the Company or any such
director, officer, employee, agent, affiliate or general or limited partner or
any such controlling person may become subject under the Securities Act, common
law or otherwise, insofar as such losses, claims, damages and liabilities (or
actions or proceedings in respect thereof, whether or not such indemnified party
is a party thereto) arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any such registration statement or any
prospectus or preliminary prospectus included therein, or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a
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prospectus or preliminary prospectus, in light of the circumstances under which
they are made), to the extent that such untrue or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished in writing by S, any Holder or any person controlling S to
the Company specifically for inclusion therein.
(d) The Company agrees to indemnify S or any Affiliate of S and
each person who controls S or such Affiliate (within the meaning of the
Securities Act), and each of their respective directors, officers, employees,
agents and general and limited partners (including any director, officer,
affiliate, employee, agent and controlling person thereof) against any and all
losses, claims, damages and liabilities, joint or several, and expenses to which
S may become subject under the Securities Act, common law or otherwise, insofar
as such losses, claims, damages and liabilities (or actions or proceedings in
respect thereof, whether or not such indemnified party is a party thereto) arise
out of or are based upon any untrue or alleged untrue statement of a material
fact contained in any registration statement covering S Securities offered in an
S Offering or any prospectus or preliminary prospectus included therein, or any
amendment or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of a prospectus or preliminary
prospectus, in light of the circumstances under which they are made), to the
extent that such untrue or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing by the Company to S or such Affiliate specifically for inclusion
therein.
(e) Any person entitled to indemnification hereunder agrees to
give prompt written notice to the indemnifying party after the receipt by such
person of any written notice of the commencement of any action, suit or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Agreement; provided, that the failure to give, or any delay in
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giving, such notice shall not relieve the indemnifying party of its obligations
hereunder except to the extent that the indemnifying party is prejudiced by such
failure or delay. Unless in the reasonable judgment of such
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indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such action, suit or
proceeding, the indemnified party shall permit the indemnifying party to assume
the defense of such action, suit or proceeding with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense thereof, then the indemnified
party shall have the right to undertake such defense; provided, that the
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indemnifying party will not be obligated to pay the fees and expenses of more
than one counsel to the indemnified party with respect to such defense. No
indemnifying party will 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 the indemnified party of a release from all
liability. The indemnifying party will not be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(f) If the indemnification provided for in this Section 10 is
unavailable to, or insufficient to hold harmless, an indemnified party hereunder
in respect of any losses, claims, damages or liabilities referred to herein by
reason other than those set forth in the exceptions and provisos in Section
10(a) and (b) hereof, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative benefits received by,
and the relative fault of, the indemnifying party and indemnified party in
connection with the actions or inactions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The parties
hereto agree that it
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would not be just and equitable if contribution pursuant to this Section 10(f)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
The amount paid or payable by the indemnified party as a result of the losses,
claims, damages or liabilities referred to above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigations,
preparing to defend 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.
Section 11. Spinoff Distributions. In the event that the Company
---------------------
issues Spinoff Warrants, then, effective as of the date of such Spinoff
Distribution, without any action on the part of the Company, the Spinoff Company
or S, there shall be deemed to exist between S and the Spinoff Company a binding
agreement (the "Spinoff Registration Rights Agreement") substantially identical
to this Agreement; provided that, for purposes of the Spinoff Registration
--------
Rights Agreement, (i) references to the Company shall mean the Spinoff Company;
(ii) references to the Common Stock, the Warrants and the Warrant Agreement
shall mean the common stock of the Spinoff Company, the Spinoff Warrants and the
warrant agreement pursuant to which the Spinoff Warrants are issued,
respectively, and references to the Redemption Agreement shall mean the Spinoff
Agreement deemed to exist between S and the Spinoff Company pursuant to Section
5.9 of the Redemption Agreement; and (iii) references to "the date hereof" and
"the date of this Agreement" shall mean the date of the Spinoff Distribution.
Capitalized terms used but not defined in this Section 11 shall have the
meanings assigned to such terms in the Warrant Agreement. Prior to any such
Spinoff Distribution, S shall, and the Company shall cause such Spinoff Company
to, enter into an agreement memorializing such Spinoff Registration Rights
Agreement.
Section 12. Termination by the Company. The Company may terminate
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this Agreement at any time by giving written notice of such termination to S;
provided, that simultaneously with such notice of termination, the
- --------
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Company irrevocably waives all restrictions on the transfer of Registrable
Securities contained in the Redemption Agreement; provided, further, that the
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aggregate fair market value of the Registrable Securities (including Common
Stock issuable upon exercise of Warrants) held by S and the Holders (determined
in a manner consistent with Section 2 hereof and, with respect to Registrable
Securities for which market data is available, during the 20 consecutive trading
days immediately preceding delivery of notice of termination) is less than $100
million. Notwithstanding the termination of this Agreement, (i) no existing
Shelf Registration shall be terminated prior to the time provided for in Section
5 hereof and (ii) the provisions of Section 10 with respect to misstatements and
omissions (actual or alleged) occurring prior to such termination shall survive
such termination.
Section 13. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 14. Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their successors by operation of
law, but may not otherwise be assigned by any party hereto without the prior
written consent of the other parties hereto; provided, that without the consent
--------
of the Company, S or any Holder may assign its rights hereunder to any wholly
owned subsidiary of S if S or any Holder shall have effected a Disposition of
Registrable Securities to such subsidiary in compliance with Section 5.3 of the
Redemption Agreement provided, further, that without the consent of the Company,
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S and Subsidiary may assign to any holders of Non-S Warrants their rights
hereunder to request a Shelf Registration pursuant to Section 2(d)(i) hereof.
Section 15. Validity. If any provision of this Agreement, or the
--------
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be
17
affected thereby, and to such end, the provisions of this Agreement are agreed
to be severable.
Section 16. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be given in the manner set forth in the
Redemption Agreement.
Section 17. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
Section 18. Descriptive Headings. The descriptive headings herein
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are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 19. Parties in Interest. This Agreement shall be binding
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upon and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 20. Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its representatives thereunto duly authorized, all
as of the day and year first above written.
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
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Name: Edgar S. Woolard, Jr.
Title:Chairman of the Board and
Chief Executive officer
The Seagram Company Ltd.
By /s/ Edgar Bronfman, Jr.
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Name: Edgar Bronfman, Jr.
Title President and Chief
Executive Officer
JES Developments, Inc.
By /s/ Daniel R. Paladino
----------------------
Name: Daniel R. Paladino
Title: Vice President
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