Exhibit 4(e)
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of May 2, 1995 between H.J. HEINZ
COMPANY, a Pennsylvania corporation ("Heinz"), and AT&T INVESTMENT MANAGEMENT
CORP. ("Buyer").
WHEREAS, as of the date hereof, Buyer has executed a Stock Purchase
Agreement with H.J. Heinz Credit Company ("Heinz Credit") pursuant to which
Buyer purchased 175,000 shares ("the Registrable Shares") of the Common Stock,
par value $.25 per share, of Heinz ("Heinz Common Stock");
WHEREAS, the shares of Heinz Common Stock that Buyer purchased from Heinz
Credit are "restricted securities" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and the parties hereby intend to
provide Buyer with certain registration rights regarding the Registrable Shares
on the terms and conditions that are set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Offer Registration.
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1.1 Notice of Offer to Effect Registration. Within 180 days after the
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date hereof (such period of days the "Registration Period"), Heinz shall deliver
a written notice to Buyer offering to effect the registration of the Registrable
Shares, and within ten business days after receipt of such notice, Buyer shall
give written notice to Heinz accepting Heinz's offer to effect the registration
of the Registrable Shares and setting forth the number of Registrable Shares the
registration of which it wishes Heinz to effect and a description of the
proposed methods of disposition of such Registrable Shares. If Buyer fails
timely to deliver notice to Heinz or delivers notice that it does not wish that
Heinz effect the registration of the Registrable Shares, Heinz shall be deemed
to have fully satisfied all of its obligations under this Section 1.1. Upon the
receipt of Buyer's notice of acceptance, Heinz will use its best efforts to
effect the registration of the Registrable Shares in satisfaction of its
obligation under this Section 1.1. Heinz shall use its best efforts to effect
the registration, in accordance with the procedures set forth in Section 2 of
this Agreement, of all or any portion of the Registrable Shares under the
Securities Act
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and the securities or blue sky laws of any jurisdiction in the United States to
be designated by Buyer so as to permit the disposition thereof in accordance
with the methods to be described by Buyer. The registration of the Registrable
Shares pursuant to this Section is referred to herein as the "Offer
Registration." Notwithstanding the foregoing, Heinz shall not be required to
effect more than one Offer Registration with respect to the Registrable Shares.
1.2 Effective Registration. The Offer Registration shall not be deemed
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to be effective unless the registration statement relating thereto has been
declared effective by the Securities and Exchange Commission (the "Commission").
Additionally, the Offer Registration shall not be deemed to have been effected
if:
(i) the registration statement relating thereto does not remain
effective until the earlier of (A) the 90th day following the date on which
such registration statement became effective, subject to the last sentence
of Section 2.1 herein, and (B) the date on which all of the Registrable
Shares intended by Buyer to be sold pursuant to such registration statement
are sold;
(ii) after the registration statement relating thereto has become
effective, such registration statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason prior to the earlier of (A) the
90th day following the date on which such registration statement became
effective, subject to the last sentence of Section 2.1 herein, and (B) the
date on which all of the Registrable Shares intended by Buyer to be sold
pursuant to such registration statement are sold; and
(iii) the conditions to closing specified in any purchase
agreement or underwriting agreement entered into in connection with the
Offer Registration are satisfied, unless the failure to satisfy any such
condition to closing is due to some act or failure to act of Buyer.
1.3 Selection of Underwriters. If Buyer proposes to dispose of the
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Registrable Shares in an underwritten offering, Buyer shall nominate an
investment banking firm of recognized national standing to act as the manager
that will administer the offering, subject to Heinz's consent, which shall not
be unreasonably withheld.
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2. General Provisions.
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2.1 Registration Procedures. If and whenever Heinz is required
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to effect the Offer Registration, Heinz shall:
(i) prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become effective; notwithstanding the foregoing of
this clause (i) of subsection 2.1, Heinz shall not be required to file a
registration statement during any period of time (not to exceed sixty days)
when (a) Heinz is in possession of material non-public information the
disclosure of which it reasonably believes would be detrimental at such
time, and in the opinion of counsel to Heinz, such information would have to
be disclosed if a registration statement were filed at such time; or (b)
Heinz is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion therein;
(ii) promptly prepare and file with the Commission such amendments,
post-effective 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 rules, regulations
or instructions of the registration form utilized by Heinz, the Securities
Act and the rules and regulations thereunder with respect to the disposition
of all Registrable Shares and other securities covered by such registration
statement until the earlier of the 90th day following the date on which such
registration statement becomes effective, subject to the last sentence of
this Section 2.1, or such time as Buyer shall have disposed of all such
Registrable Shares in accordance with the intended methods of disposition;
(iii) immediately notify Buyer (a) when or if the prospectus
or any prospectus supplement or post-effective amendment has been filed, and
with respect to the registration statement or any post-effective amendment,
when the same has become effective; (b) of any request by the Commission for
amendments or supplements to the registration statement or the prospectus or
for additional information; (c) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that
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purpose; (d) of the receipt by Heinz of any notification with respect to the
suspension of the qualification of Registrable Shares for sale in any
jurisdiction; and (e) of the existence of any fact that makes any material
statement made in the registration statement, the prospectus or any document
incorporated therein by reference untrue or that requires the making of any
material changes in the registration statement, the prospectus or any
document incorporated therein by reference to make the statements therein
not misleading;
(iv) if any fact contemplated by clause (iii)(e) above shall exist,
promptly (a) prepare and file a supplement or post-effective amendment to
the registration statement or the related prospectus or any document
incorporated therein by reference or (b) file any required document so that,
as thereafter delivered to the purchasers of Registrable Shares, the
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(v) if any order or suspension contemplated by clause (iii)(c) or
(iii)(d) above shall exist, use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement or any
suspension of the qualification of Registrable Shares for sale at the
earliest possible moment; and
(vi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its securities
holders, as soon as reasonably practicable, an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and covers
the period beginning with the first month of the first fiscal quarter after
the effective date of the registration statement and ending between twelve
months and eighteen months thereafter.
In determining the 90-day period for purposes of clauses (i) and (ii)
of Section 1.2 herein and clause (ii) of this Section 2.1, each such 90-day
period shall be extended for one day for every day for which a stop order is in
effect or has been initiated as contemplated by clause (iii)(c) above or every
day on which any fact contemplated by clause (iii)(e) above exists.
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2.2 Blue Sky Qualification. Heinz shall use its best efforts to
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cause the Registrable Shares that are the subject of the Offer Registration to
be qualified for sale under the securities or blue sky laws of such
jurisdictions in the United States as Buyer may reasonably request and shall
cause such registration or qualification to remain in effect in such
jurisdictions until the earlier of (i) the 90th day following the date on which
the related registration statement becomes effective and (ii) such time as Buyer
shall have disposed of all of the Registrable Shares in accordance with the
intended methods of disposition. Heinz shall do any and all other acts and
things that may be necessary or advisable to enable Buyer to consummate the
disposition of Registrable Shares in such jurisdictions, provided that Heinz
shall not be required (x) to qualify to do business in any state by reason of
this Section 2.2, (y) to subject itself to taxation in any such jurisdiction or
(z) to consent to general service of process in any such jurisdiction.
2.3 Copies Provided. Heinz shall furnish to Buyer the number of
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copies of the applicable registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), the number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, such documents, if any, incorporated by reference in such registration
statement or prospectus and any other documents that Buyer may reasonably
request to facilitate the disposition of the Registrable Shares.
2.4 Requested Information. The registration rights granted to
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Buyer by this Agreement are subject to the condition that Buyer shall provide
Heinz with information about the Registrable Shares to be sold including the
plans for the proposed disposition thereof, and other information that is
necessary, in the reasonable opinion of counsel for Heinz, to enable Heinz to
include in a registration statement all material facts required to be disclosed
with respect to the offering.
2.5 Buyer's Suspension of Dispositions. Buyer hereby agrees that,
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upon receipt of any notice from Heinz of the happening of any event of the kind
described in clauses (c), (d) and (e) of paragraph (iii) of Section 2.1, Buyer
shall forthwith discontinue disposition of any of the Registrable Shares until
Buyer's receipt of copies of the supplemented or amended prospectus contemplated
by clause (iv) of Section 2.1 or until Buyer's receipt of notice from Heinz that
the order suspending the effectiveness of the registration statement or
suspending the qualification of
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the sale of any Registrable Shares has been withdrawn as contemplated by clause
(v) of Section 2.1.
2.6 Listing. Heinz shall cause all Registrable Shares covered by any
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registration statement to be listed on each securities exchange on which similar
securities issued by Heinz are listed.
2.7 Participation in Underwritten Registra tion. Buyer may not
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participate in any underwritten regis tration in connection with this Agreement
unless Buyer comp letes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of any such underwriting arrangements.
3. Registration Expenses. Heinz shall pay all expenses arising
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from or incident to the performance of, or compliance with, this Agreement,
including without limitation: (i) all registration, filing, listing and National
Association of Securities Dealers, Inc. fees; (ii) all fees and expenses
incurred in complying with securities or blue sky laws; (iii) all printing,
messenger and delivery expenses; (iv) all fees and disbursements of counsel and
accountants for Heinz and the Buyer, including the expenses of any "comfort"
letters; and (v) all of the internal expenses incurred by Heinz, including
without limitation salaries and expenses of officers and employees performing
legal and accounting duties, expenses of conducting the annual audit of Heinz's
financial statements by its independent accountants, costs in obtaining
liability insurance on behalf of Heinz, its officers and directors, and the
reasonable fees and expenses of any special experts retained in connection with
any registration statement pursuant to the terms of this Agreement, regardless
of whether such registration statement is declared effective; however, Buyer
will be responsible for underwriters discounts and selling commissions with
respect to the Registrable Shares being sold.
4. Indemnification and Contribution.
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4.1 Indemnification by Heinz. In connection with the Offer
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Registration effected by Heinz hereby, Heinz will indemnify and hold harmless
Buyer, its officers and directors, each underwriter of the securities
registered, any broker-dealer acting as agent of Buyer, and each person who
controls, within the meaning of Section 15 of the Securities Act, Buyer or any
underwriter against any and all losses, claims, damages, liabilities or expenses
to which they or any of them may become subject under the Securities Act or any
other statute or common law, including any amount
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paid in settlement of any commenced or threatened litigation (collectively, the
"Damages"), insofar as any such Damages arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (as amended or supplemented) or any
preliminary prospectus or the 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 light of the circumstances under which they were made.
Heinz shall not be bound by the indemnification provision of the preceding
sentence with respect to Buyer or any underwriter if such Damages arise solely
out of or are based upon any untrue statement or alleged untrue statement, or
any omission or alleged omission that was made in reliance upon and in
conformity with information furnished in writing to Heinz by Buyer or such
underwriter, as the case may be, for use in connection with the preparation of
the registration statement, any preliminary prospectus, any prospectus contained
in the registration statement, or any such amendment thereof or supplement
thereto. Notwithstanding the foregoing, the indemnification provided in this
Section 4.1 shall not inure to the benefit of any underwriter from whom the
person asserting any such Damages purchased the securities that are the subject
hereof (or to the benefit of any person controlling such underwriter), if the
underwriter failed to send or give a copy of the prospectus to such person at or
prior to the written confirmation of the sale of the securities to such person.
4.2 Indemnification by Buyer. In connection with the Offer
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Registration effected by Heinz hereby, Buyer agrees to indemnify and hold
harmless Heinz, each person, if any, who controls, within the meaning of Section
15 of the Securities Act, Heinz, its directors and its officers against all
Damages based upon or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (as amended or supplemented) or any preliminary prospectus or the
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
light of the circumstances under which they were made, only if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to Heinz by Buyer for use in connection with the registration
statement or any post-effective amendment thereof or any preliminary prospectus
or prospectus contained in such registration statement or any such amendment
thereof or supplement thereto.
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4.3 Notice of Claim Triggering an Indemnity; Waiver. Promptly
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after the receipt of notice of the commencement of any action against any party
entitled to indemnity under Section 4.1 or 4.2 (an "Indemnified Party") in
respect of which indemnity may be sought from any other party (an "Indemnifying
Party") on account of an indemnity agreement contained in Section 4.1 or 4.2 (an
action triggering the liability under Section 4.1 or 4.2, an "Action"), the
Indemnified Party will notify the Indemnifying Party in writing of the
commencement thereof. The failure of any Indemnified Party to notify an
Indemnifying Party of any Action shall not relieve the Indemnifying Party from
any liability in respect of such Action, unless and to the extent the failure to
provide prompt notice materially prejudices the Indemnifying Party in its
ability to defend against or settle such Action. In addition, any failure to
give such notice shall not relieve the Indemnifying Party from any other
liability that it may have to the Indemnified Party. If any Action is brought
against any Indemnified Party and the Indemnified Party notifies an Indemnifying
Party of the commencement thereof, the Indemnifying Party will be entitled to
participate therein and to assume the defense of the Action (the "Assumed
Action") with counsel satisfactory to the Indemnified Party, provided that the
Indemnifying Party promptly notifies in writing the Indemnified Party of its
election to assume the defense of the Action and acknowledges in writing that
the claim in question is one for which the Indemnifying Party is obligated to
indemnify the Indemnified Party. Upon receipt by the Indemnified Party of this
written notice and acknowledgement, the Indemnifying Party will not be liable to
the Indemnified Party for any legal or other expenses that the Indemnified Party
subsequently incurs in connection with the Assumed Action, other than reasonable
costs of investigation; however, if the Indemnified Party has a reasonable basis
to believe and does in fact believe that its interests in such Assumed Action
conflict with those of the Indemnifying Party, then the Indemnified Party may so
notify the Indemnifying Party and the Indemnifying Party will remain liable to
the Indemnified Party for all legal or other expenses that the Indemnified Party
incurs in connection with the Assumed Action. The Indemnifying Party may not
compromise or settle any Assumed Action without the prior written consent of the
Indemnified Party, unless such settlement or compromise releases and forever
holds harmless the Indemnified Party from all Damages and any culpability in
connection with or arising out of the Assumed Action. The Indemnified Party may
not compromise or settle any Action without the prior written consent of the
Indemnifying Party, which may not unreasonably withhold its consent.
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4.4 Contribution. To provide for contribution in circumstances in
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which the indemnification provided for in Section 4.1 or 4.2 is for any reason
held to be unavailable from the Indemnifying Party, after deducting any
contribution received by either Heinz or Buyer, including from persons who
control within the meaning of Section 15 of the Securities Act either of them,
officers of Heinz who signed the registration statement, and directors of either
of them who may also be liable for contribution, Heinz and Buyer shall each
contribute to the aggregate Damages of the nature contemplated by the
indemnification provisions set forth in Sections 4.1 and 4.2 herein (including
any investigation, legal, and other expenses incurred in connection with and any
amount paid in settlement of any action, suit, proceeding or asserted claims) to
which either Heinz or Buyer may be subject. Heinz and Buyer each shall
contribute an amount that shall reflect the relative benefit received by each
party as compared to the other party from the offering pursuant to a
registration statement, the relative fault of each party as compared to the
other party in connection with the statements or omissions that resulted in the
Damages and any other relative equitable considerations. Notwithstanding the
foregoing provisions of this Section 4.4, in accordance with Section 11(f) of
the Securities Act, no person guilty of fraudulent misrepresentation shall be
entitled to obtain contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 4.4, each person, if
any, who controls within the meaning of Section 15 of the Securities Act Heinz
or Buyer, each officer of Heinz who shall have signed the registration
statement, and each director of Heinz or Buyer shall have the same rights to
contribution as Heinz or Buyer, subject in each case to the provisions of the
preceding sentence.
5. Miscellaneous.
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5.1 No Inconsistent Agreements. Heinz shall not enter into any
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agreement with respect to its securities that is inconsistent with the rights
granted to Buyer in this Agreement.
5.2 Amendments. Except as otherwise provided herein, the
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provisions of this Agreement may not be amended, modified, or supplemented,
unless any of the above is approved, agreed to, or made in writing by Buyer.
5.3 Notices. Any notice or other communication required or that
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may be given hereunder shall be in writing and shall be deemed given (i) when
delivered personally; (ii) if sent by telecopy or like transmission, upon a
receipt of transmittal confirmation; or (iii) if sent
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by Federal Express, Express Mail, or similar overnight courier service to the
parties at the addresses set forth below, on the next business day.
Mailed notices should be addressed as follows:
(a) If to Buyer, to:
AT&T Investment Management Corp.
c/o State Street Global Advisors
Two International Place
35th Floor
Boston, MA 02110
Attn: Paul Brakke
Andrew Hone
(b) If to Heinz, to:
H.J. Heinz Company
600 Grant Street
Pittsburgh, PA 15219
Attn: Corporate Secretary
5.4 Successors and Assigns. The rights and obligations created
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by this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of each of the parties. The rights and
obligations of the parties hereunder may not be assigned, except by operation of
law.
5.5 Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.6 Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
5.7 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State.
5.8 Severability. In the event that any one or more of the
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provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality, and enforceability of any such provision
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in every other respect and of the remaining provisions contained herein shall
not be in any way impaired thereby.
5.9 Entire Agreement; No Third-Party Beneficiaries. This Agreement
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is intended by the parties as a final expression of their agreement and
constitutes a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. This Agreement is not intended to confer upon any party other than the
parties hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
H.J. HEINZ COMPANY
By: /s/ Paul F. Renne
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Name: Paul F. Renne
Title: Vice President - Treasurer
AT&T INVESTMENT MANAGEMENT CORP.
By: /s/ Lawrence Unvein
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Name: Lawrence Unvein
Title: Vice President