Exhibit 10-4
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AMENDED AND RESTATED REGISTRATION AGREEMENT
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THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this "Agreement") is
made and entered into as of January 31, 1995, by and among Nutraceutical
International Corporation (f/k/a Nutraceutical Corporation), a Delaware
corporation (the "Company"), the Persons listed on Schedule A attached hereto
(the "▇▇▇▇ Stockholders"), ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation
("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ National Life Insurance Company, a Michigan insurance
corporation ("JNL"), and the Persons listed on Schedule B attached hereto (the
"Other Stockholders") (the ▇▇▇▇ Stockholders, ▇▇▇▇▇▇, JNL and the Other
Stockholders are collectively referred to herein as the "Stockholders," and each
as a "Stockholder"). This Agreement amends, restates and supersedes that
certain Registration Agreement dated as of October 28, 1993, by and among the
Company, the ▇▇▇▇ Stockholders, ▇▇▇▇▇▇ and certain other persons. Unless
otherwise provided in this Agreement, capitalized terms used herein shall have
the meanings set forth in paragraph 9 hereof.
The Company's wholly-owned subsidiary, Nutraceutical Corporation
(f/k/a Nutraceutical Newco, Inc.), a Delaware corporation ("Nutraceutical"), its
Subsidiaries, the Company and JNL are parties to a Revolving Credit and Term
Loan Agreement dated January 31, 1995 (the "Credit Agreement") whereby, subject
to the terms and conditions set forth therein, JNL has agreed to make certain
revolving credit and term loans and other financial accommodations to
Nutraceutical and its Subsidiaries. The execution and delivery of this
Agreement by the Company is a condition to JNL's obligation to consummate the
transactions contemplated by the Credit Agreement.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time, the holders of a majority
of the ▇▇▇▇ Registrable Securities may request registration under the Securities
Act of all or part of their Registrable Securities on Form S-1 or any similar
long-form
registration ("Long-Form Registrations") or, if available, on Form S-2 or S-3 or
any similar short-form registration ("Short-Form Registrations"). In addition,
▇▇▇▇▇▇ may request registration under the Securities Act of all or a part of the
▇▇▇▇▇▇ Registrable Securities pursuant to a Long-Form Registration or Short-Form
Registration under circumstances set forth in paragraph 1(d) below. Each request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within ten days after receipt of any such request, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and, subject to paragraph 1(e) below, will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 30 days
after the receipt of the Company's notice. All registrations requested pursuant
to this paragraph 1(a) are referred to herein as "Demand Registrations."
(b) Long-Form Registrations. The holders of a majority of the ▇▇▇▇
Registrable Securities will be entitled to request three Long-Form Registrations
in which the Company will pay all Registration Expenses. A registration will
not count as one of the permitted Long-Form Registrations until it has become
effective, and the last Long-Form Registration will not count as one of the
permitted Long-Form Registrations unless the holders of Registrable Securities
initially requesting such registration have been able to register and sell at
least 90% of the Registrable Securities initially requested to be registered by
such holders; provided that in any event the Company will pay all Registration
Expenses in connection with any registration initiated as a Long-Form
Registration whether or not it has become effective. All Long-Form
Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the ▇▇▇▇ Registrable Securities will be entitled to request unlimited Short-Form
Registrations in which the Company will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange
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Act, the Company will use its best efforts to make Short-Form Registrations
available for the sale of Registrable Securities.
(d) ▇▇▇▇▇▇ Demand Registration Rights. At any time after the
Company's Common Stock is publicly traded on any national securities exchange or
quoted as a NASDAQ "National Market Security," the holders of a majority of the
▇▇▇▇▇▇ Registrable Securities will be entitled to request one Long-Form
Registration in which the Company will pay all Registration Expenses (the
"▇▇▇▇▇▇ Demand Registration"); provided that the Company will not be obligated
to effect such ▇▇▇▇▇▇ Demand Registration unless the holders of the ▇▇▇▇▇▇
Registrable Securities request to include at least 50% of the ▇▇▇▇▇▇ Registrable
Securities. A registration will not count as one of the permitted ▇▇▇▇▇▇ Demand
Registrations until it has become effective, and unless the holders of ▇▇▇▇▇▇
Registrable Securities initially requesting such registration have been able to
register and sell at least 75% of the ▇▇▇▇▇▇ Registrable Securities initially
requested to be registered by such holders; provided that in any event the
Company will pay all Registration Expenses in connection with any registration
initiated as a ▇▇▇▇▇▇ Demand Registration whether or not it has become
effective. All ▇▇▇▇▇▇ Demand Registrations which are Long-Form Registrations
shall be underwritten registrations. The ▇▇▇▇▇▇ Demand Registration will be a
Short-Form Registration if the Company is permitted to use any applicable short
form.
(e) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of (i) the ▇▇▇▇
Registrable Securities included in such registration, in the case of any Demand
Registration other than a ▇▇▇▇▇▇ Demand Registration, and (ii) the ▇▇▇▇▇▇
Registrable Securities in the case of a ▇▇▇▇▇▇ Demand Registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, (i) in the case of any Demand Registration other
than a ▇▇▇▇▇▇ Demand Registration, the Company will include in such registration
prior to the inclusion of any securities which are not Registrable
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Securities the number of Registrable Securities requested to be included which
in the opinion of such underwriters can be sold without adversely affecting the
marketability of the offering, pro rata among the respective holders thereof on
the basis of the number of shares of Registrable Securities owned by each such
holder; provided that if, after the exercise of a ▇▇▇▇▇▇ Demand Registration,
▇▇▇▇▇▇ still holds a portion of the ▇▇▇▇▇▇ Registrable Securities, the Company
will include such remaining ▇▇▇▇▇▇ Registrable Securities in such registration
prior to the inclusion of any other Registrable Securities and (ii) in the case
of a ▇▇▇▇▇▇ Demand Registration, the Company will include in such registration
(A) first, the securities the holders of ▇▇▇▇▇▇ Registrable Securities propose
to sell, pro rata among the respective holders thereof on the basis of the
number of shares of Registrable Securities owned by each such holder, (B)
second, the Registrable Securities requested to be included in such registration
by the other holders of Registrable Securities, pro rata among such other
holders on the basis of the number of shares of Registrable Securities owned by
each such holder, and (C) third, other securities requested to be included in
such registration.
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. The Company may postpone for
up to six months the filing or the effectiveness of a registration statement for
a Demand Registration if the Company and the holders of at least a majority of
the Registrable Securities agree that such Demand Registration would reasonably
be expected to have an adverse effect on any proposal or plan by the Company or
any of its Subsidiaries to engage in any acquisition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided, however, that in such event, the holders of
Registrable Securities initially requesting such Demand Regis tration will be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and the Company will pay all Registration Expenses in connection with
such registration.
(g) Selection of Underwriters. The holders of a majority of the ▇▇▇▇
Registrable Securities included in any Demand Registration other than a ▇▇▇▇▇▇
Demand Registration will have the
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right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval which will not be unreasonably
withheld. The Company will have the right to select the investment banker(s) and
manager(s) to administer any ▇▇▇▇▇▇ Demand Registration, subject to the approval
of a majority of the ▇▇▇▇▇▇ Registrable Securities included in any ▇▇▇▇▇▇ Demand
Registration, which will not be unreasonably withheld.
(h) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the ▇▇▇▇ Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities (including any proposed registration of the Company's
securities by any third party) under the Securities Act (other than pursuant to
a Demand Registration or a registration on Form S-4 or S-8 or any successor or
similar forms) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), whether or
not for sale for its own account, the Company will give prompt written notice to
all holders of Registrable Securities of its intention to effect such a
registration and, subject to paragraph 2(c) and (d) below, will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely
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affecting the marketability of such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder (provided that if, after
the exercise of a ▇▇▇▇▇▇ Demand Registration, ▇▇▇▇▇▇ still holds a portion of
the ▇▇▇▇▇▇ Registrable Securities, the Company will include such remaining
▇▇▇▇▇▇ Registrable Securities in such registration prior to the inclusion of any
other Registrable Securities), and (iii) third, other securities requested to be
included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such securities on the basis of the number of shares owned by each such holder
(provided that if, after the exercise of a ▇▇▇▇▇▇ Demand Registration, ▇▇▇▇▇▇
still holds a portion of the ▇▇▇▇▇▇ Registrable Securities, the Company will
include such remaining ▇▇▇▇▇▇ Registrable Securities in such registration prior
to the inclusion of any other securities), and (ii) second, other securities
requested to be included in such registration.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at
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least six months has elapsed from the effective date of such previous
registration.
3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder
of Registrable Securities agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-4 or S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to cause each holder of its
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
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(a) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed, which documents will be subject to review
of such counsel);
(b) prepare and file with the Securities and Exchange Commission 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 for a period of either (i) not less than six months (subject
to extension pursuant to paragraph 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
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(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of 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 fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable
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Securities (including, without limitation, effecting a stock split or a
combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain a comfort letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement); and
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(m) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
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(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered
for each seller.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Secu rities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or
several, to which such holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained (A) in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or (B) in any application or other document or
communication (in this paragraph 6 collectively called an "application")
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify any securities covered by such registration statement under the "blue
sky" or securities laws thereof, or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such holder and each such
director, officer and controlling person for any legal or any other expenses
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission, made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon, and in conformity
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with, written information prepared and furnished to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will severally indemnify and
hold harmless the Company, its directors and officers and each other Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, joint or several, to which such holder or
any such director or officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or in
any application or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such holder expressly for use therein, and such holder will
reimburse the Company and each such director, officer and controlling Person for
any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that the obligation to indemnify will be
individual to each holder and will be limited to the net
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amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The parties
hereto agree to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's or
such other party's indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s)) and (ii) completes and executes all
questionnaires (provided that, in the case of any selling stockholder who does
not actively
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participate in the management of the Company, such questionnaire will be limited
to information pertinent to such Person in his or its capacity as a selling
stockholder), powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
Notwithstanding the foregoing, the parties hereto shall not be obligated to
engage in any transaction which would result in a violation of any federal or
state securities laws or subject any such party to disgorgement under Section
16(b) of the Securities Exchange Act.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company will file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
-15-
9. Definitions.
"Bain Registrable Securities" means (i) any shares of Common Stock
issued to the Bain Stockholders pursuant to the Purchase Agreement, (ii) any
equity securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange
and (iii) any other shares of Common Stock held by Persons holding securities
described in clause (i) or (ii) above; provided, however, that in the event that
pursuant to such recapitalization or exchange equity securities are issued which
do not participate in the residual equity of the Company ("Non-Participating
Securities"), such Non-Participating Securities will not be Registrable
Securities. As to any particular shares constituting Bain Registrable
Securities, such shares will cease to be Bain Registrable Securities when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Class A Common" means the Class A Common Stock, par value $.01 per
share, of the Company.
"Class A Non-Voting Common" means the Class A Non-Voting Common Stock,
par value $.01 per share, of the Company.
"Class P Common" means the Class P Common Stock, par value $.01 per
share, of the Company.
"Common" means the Common Stock, par value $.01 per share, of the
Company.
"Common Stock" means collectively the Class A Non-Voting Common, Class
A Common, Non-Voting Common, Class P Common and Common.
"▇▇▇▇▇▇ Registrable Securities" means (i) any Common Stock issued
upon the conversion of any Class A Non-Voting Common or Non-Voting Common issued
upon the exercise of the ▇▇▇▇▇▇
-16-
Warrants, (ii) any equity securities issued or issuable directly or indirectly
with respect to the securities referred to in clause (i) by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a
recapitalization or exchange and (iii) any other shares of Common Stock held by
Persons holding securities described in clauses (i) and (ii) above; provided,
however, that in the event that pursuant to such recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting ▇▇▇▇▇▇
Registrable Securities, such shares will cease to be ▇▇▇▇▇▇ Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public through a broker, dealer or market maker pursuant to
Rule 144 (or by similar provision then in force) under the Securities Act.
"▇▇▇▇▇▇ Warrants" means those two warrants of the Company dated
October 28, 1993, each as amended on October 31, 1994 and on the date hereof,
whereby ▇▇▇▇▇▇ has the right to acquire the number of shares of Common Stock set
forth therein.
"JNL Registrable Securities" means (i) any shares of Common Stock
issued to JNL pursuant to the Credit Agreement, (ii) any equity securities
issued or issuable directly or indirectly with respect to the securities
referred to in clause (i) by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange and (iii) any
other shares of Common Stock held by Persons holding securities described in
clauses (i) and (ii) above; provided, however, that in the event that pursuant
to such recapitalization or exchange Non-Participating Securities are issued,
such Non-Participating Securities will not be Registrable Securities. As to any
particular shares constituting JNL Registrable Securities, such shares will
cease to be JNL Registrable Securities when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
-17-
"KAL Purchase Agreement" means that certain Asset Purchase Agreement
dated as of November 16, 1994, by and among the Company, Makers of KAL, Inc., a
Delaware corporation, Makers of KAL, Inc., a California corporation (c/k/a Old
KAL, Inc.) and certain other persons.
"Management Agreements" means (i) that certain Executive Stock
Agreement dated October 28, 1993, between the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
(ii) those certain Executive Stock Agreements dated July 8, 1994, between the
Company and each of (A) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (B) ▇▇▇▇▇▇ ▇▇▇▇▇, (C) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
and (D) ▇▇▇▇▇ ▇▇▇▇, (iii) that certain Consultant Stock Agreement dated October
28, 1993, between the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇, (iv) that certain Option
Agreement dated as of October 31, 1994, between the Company and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, and (v) those certain Option Agreements dated as of November 15, 1994,
between the Company and each of (A) ▇▇▇▇▇ ▇. ▇▇▇ ▇▇, (B) ▇▇▇▇▇ ▇. ▇▇▇▇▇, and (C)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
"▇▇▇▇▇ Warrants" means any warrants issued or to be issued to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇.
"Non-Voting Common" means the Class A Non-Voting Common Stock, par
value $.01 per share, of the Company.
"Other Registrable Securities" means (i) any shares of Common Stock
issued to the Other Stockholders pursuant to the Management Agreements, (ii)
any shares of Common Stock issued upon exercise of the ▇▇▇▇▇ Warrants, (iii) any
shares of Common Stock issued to the Other Stockholders pursuant to the KAL
Purchase Agreement, (iv) any shares of Common Stock issued to employees of the
Company after the date hereof, which sale has been approved by the Company's
board of directors and identified as being subject to this Agreement, (v) any
equity securities issued or issuable directly or indirectly with respect to the
securities referred to in clauses (i), (ii), (iii) and (iv) by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a
recapitalization or exchange and (vi) any other shares of Common Stock held by
Persons holding securities described in clauses (i), (ii), (iii), (iv) or (v)
above; provided, however, that in the event that pursuant to such
recapitalization or exchange Non-Participating Securities are issued, such Non-
-18-
Participating Securities will not be Registrable Securities. As to any
particular shares constituting Other Registrable Securities, such shares will
cease to be Other Registrable Securities when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
"Purchase Agreement" means that certain Stock Purchase Agreement dated
as of October 28, 1993 between the Company and the Bain Stockholders, whereby
the Bain Stockholders purchased the number of shares of Common Stock set forth
opposite each Stockholder's name on the Schedule of Purchasers attached thereto.
"Registrable Securities" means collectively Bain Registrable
Securities, ▇▇▇▇▇▇ Registrable Securities, JNL Registrable Securities and Other
Registrable Securities. For purposes of this Agreement, a Person will be deemed
to be a holder of Registrable Securities whenever such Person has the right to
acquire such Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Subsidiary" means with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any
-19-
contingency) to vote in the election of directors is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
association or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed
to have a majority ownership interest in a partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
partnership, association or other business entity gains or losses or shall be or
control the managing director or general partner of such partnership,
association or business entity.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Purchase Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto shall have the right to injunctive relief,
in addition to all of its other rights and remedies at law or in equity, to
enforce the provisions of this Agreement.
-20-
(d) Amendments and Waivers; Joinder. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company, holders of a majority of the Registrable
Securities, holders of a majority of the ▇▇▇▇▇▇ Registrable Securities and
holders of a majority of the JNL Registrable Securities; provided, however, that
in the event that such amendment or waiver would treat a holder or group of
holders of Registrable Securities in a manner different from any other holders
of Registrable Securities, then such amendment or waiver will require the
consent of such holder or the holders of a majority of the Registrable
Securities of such group adversely treated. Any employee of the Company who
holds Other Registrable Securities may become a party to this Agreement upon
execution and delivery of a joinder agreement between such employee and the
holders of at least a majority of the Registrable Securities.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or any portion thereof) as
such shall be for the benefit of an enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof), subject to the provisions
respecting the minimum numbers or percentages of shares of Registrable
Securities (or of such portion thereof) required in order to be entitled to
certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need
-21-
not contain the signatures of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. The corporate law of the State of Delaware will
govern all issues concerning the relative rights of the Company and its
stockholders. All other issues concerning this Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.
(j) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications will
be sent to the Bain Stockholders, the Other Stockholders and the holders of the
▇▇▇▇▇ Warrants at the addresses indicated in the Company's records and to the
Company, ▇▇▇▇▇▇ and JNL at the addresses indicated below:
Nutraceutical International Corporation
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
--------------
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Learner
-22-
To ▇▇▇▇▇▇:
---------
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Portfolio Organization
Corporate Finance Group
with a copy to:
--------------
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Portfolio Organization
Corporate Finance Group
To JNL:
------
▇▇▇▇▇▇▇ National Life Insurance Company
c/o PPM America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Private Placements
with a copy to:
--------------
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
-23-
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Agreement on the day and year first above written.
NUTRACEUTICAL INTERNATIONAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
-------------------------------
Its: Chairman
------------------------------
▇▇▇▇ CAPITAL FUND IV, L.P.
By: ▇▇▇▇ Capital Partners IV, L.P.
Its: General Partner
By: ▇▇▇▇ Capital Investors, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Its: Managing Director
------------------------------
▇▇▇▇ CAPITAL FUND IV-B, L.P.
By: ▇▇▇▇ Capital Partners IV, L.P.
Its: General Partner
By: ▇▇▇▇ Capital Investors, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Its: Managing Director
------------------------------
-24-
BCIP ASSOCIATES
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
A General Partner
BCIP TRUST ASSOCIATES, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
A General Partner
▇▇▇▇▇▇ FINANCIAL, INC.
By: (signature illegible)
-------------------------------
Its: Vice President
-------------------------------
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
---------------------------------
Its: Sr. V.P. & C.F.O.
-------------------------------
Makers of KAL, INC., A California
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Its: President
-----------------------------
▇. ▇. ▇▇▇ & SONS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
------------------------------
Its: Partner
------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. Learner
----------------------------------
▇▇▇▇▇ ▇. Learner
/s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇ ▇▇
(unsigned)
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Schedule A
----------
The Bain Stockholders
---------------------
▇▇▇▇ Capital Fund IV, ▇.▇.
▇▇▇▇ Capital Fund IV-B, L.P.
BCIP Associates, L.P.
BCIP Trust Associates, L.P.
F. W. Gay & Sons
▇▇▇▇▇ ▇. Learner
Schedule B
----------
The Other Stockholders
----------------------
Old KAL, Inc.
▇▇▇▇▇ ▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇