EXHIBIT 4.08
DIMON INCORPORATED
7 3/4% SENIOR NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
Charlotte, North Carolina
May 30, 2003
Wachovia Securities, Inc.
As the Initial Purchaser under the Purchase Agreement
One Wachovia Center
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Ladies and Gentlemen:
This Registration Rights Agreement (this "Agreement") is dated as
of May 30, 2003, by and among DIMON Incorporated, a Virginia corporation (the
"Company"), and Wachovia Securities, Inc. (the "Initial Purchaser").
This Agreement is being entered into in connection with a certain
purchase agreement, dated May 27, 2003, between the Company and the Initial
Purchaser (the "Purchase Agreement"), which provides for the issuance and sale
by the Company to the Initial Purchaser of $125,000,000 aggregate principal
amount of the Company's 7 3/4% Senior Notes Due 2013 (the "Notes"). In order
to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees. The execution and delivery of this Agreement is a condition to
the obligation of the Initial Purchaser to purchase the Notes under the
Purchase Agreement. The parties hereby agree as follows:
1.Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" means, with respect to any specified person, any other
person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of Charlotte, North Carolina
or New York, New York or is a day on which banking institutions therein located
are authorized or required by law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange Offer,
the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Company's acceptance for exchange
of all Transfer Restricted Notes duly tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and (d) the delivery of Exchange
Notes by the Company to the registrar under the Indenture in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted Notes
duly tendered and not validly withdrawn by Holders thereof pursuant to the
Registered Exchange Offer and the delivery of such Exchange Notes to such
Holders. The term "Consummation" has a meaning correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" means debt securities of the Company substantially
identical in all material respects to the Notes (except that the Liquidated
Damages provisions and the transfer restrictions pertaining to the Notes will
be modified or eliminated, as appropriate), to be issued under the Indenture.
"Exchange Offer Registration Period" means the 180 day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or during which the
Company has suspended the use of the Prospectus contained therein pursuant to
Section 2(d); provided, however, that in the event that all resales of Exchange
Notes (including, subject to the time periods set forth herein, any resales by
Participating Broker-Dealers) covered by such Exchange Offer Registration
Statement have been made, the Exchange Offer Registration Statement need not
thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Holder" means any holder from time to time of Transfer Restricted
Notes or Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, dated as of May 30, 2003, between the Company and SunTrust
Bank, as trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Issue Date" means May 30, 2003.
"Liquidated Damages" has the meaning set forth in Section 4 hereto.
"Losses" has the meaning set forth in Section 8(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Transfer Restricted Notes registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering
under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Participating Broker-Dealer" means any Holder (which may include
the Initial Purchaser) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Notes covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the Holders
to issue and deliver to such Holders, in exchange for the Notes, a like
principal amount of Exchange Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including any guarantees of each thereof) pursuant to the
provisions of this Agreement, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof, which
covers some or all of the Transfer Restricted Notes, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, and which may be in the format of an amendment to
the Exchange Offer Registration Statement if permitted by the Commission, all
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Transfer Restricted Notes" means each Note upon original issuance
thereof and at all times subsequent thereto, each Exchange Note as to which
Section 3(a)(iii) and Section 3(a)(iv) apply upon original issuance and at all
times subsequent thereto, until in the case of any such Note or Exchange Note,
as the case may be, the earliest to occur of (i) the date on which such Note
has been exchanged by a person other than a Participating Broker-Dealer for an
Exchange Note (other than with respect to an Exchange Note as to which Section
3(a)(iii) and Section 3(a)(iv) apply), (ii) with respect to Exchange Notes
received by Participating Broker-Dealers in the Registered Exchange Offer, the
date on which such Exchange Note has been sold by such Participating Broker-
Dealer by means of the Prospectus contained in the Exchange Offer Registration
Statement, (iii) a Shelf Registration Statement covering such Note or Exchange
Note, as the case may be, has been declared effective by the Commission and
such Note or Exchange Note, as the case may be, has been disposed of in
accordance with such effective Shelf Registration Statement, (iv) the date on
which such Note or Exchange Note, as the case may be, can be sold without any
limitations under clauses (c), (e), (f) or (h) of Rule 144 under the Act or (v)
such Note or Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the trustee with respect to the Notes or Exchange
Notes, as applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by
Participating Broker-Dealers; Private Exchange. (a) The Company shall prepare
and, not later than 120 days from the Issue Date (or, if such 120th day is not
a Business Day, by the first Business Day thereafter), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer (the date of such filing hereinafter referred to as
the "Filing Date"). The Company shall use its best efforts (i) to cause the
Exchange Offer Registration Statement to be declared effective under the Act
within 210 days from the Issue Date (or, if such 210th day is not a Business
Day, by the first Business Day thereafter), and (ii) to Consummate the
Registered Exchange Offer within 30 Business Days from the date the Exchange
Offer Registration Statement becomes effective.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company will promptly commence and Consummate the Registered
Exchange Offer. The objective of such Registered Exchange Offer is to enable
each Holder electing to exchange Transfer Restricted Notes for Exchange Notes
(assuming that such Holder (x) is not an "affiliate" of the Company within the
meaning of the Act, (y) is not a broker-dealer that acquired the Transfer
Restricted Notes in a transaction other than as a part of its market-making or
other trading activities and (z) if such Holder is not a broker-dealer,
acquires the Exchange Notes in the ordinary course of such Holder's business,
is not participating in the distribution of the Exchange Notes and has no
arrangements or understandings with any person to make a distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i)mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii)keep the Registered Exchange Offer open for acceptance for not
less than 20 Business Days after the date notice thereof is mailed to
Holders;
(iii)utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv)comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Company may suspend the use of the Prospectus for up to
three periods not to exceed 90 days in the aggregate in any twelve-month period
for valid business reasons, to be determined by the Company in its reasonable
judgment (not including avoidance of its obligations hereunder), including,
without limitation, pending acquisitions or divestitures of assets, mergers and
combinations and similar events; provided that
(i) the Company promptly thereafter complies with the requirements
of Section 5(k) hereof, if applicable;
(ii)the period during that the Registration Statement is required
to be effective and usable shall be extended by the number of days during
which such Registration Statement was not effective or usable pursuant to
the foregoing provisions; and
(iii)the Liquidated Damages shall accrue on the Notes as provided
in Section 4 hereof.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Company shall cause the Trustee promptly to
authenticate and deliver to each Holder Exchange Notes equal in principal
amount to the Transfer Restricted Notes of such Holder so accepted for
exchange.
(f) The Initial Purchaser and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, (i) each
Participating Broker-Dealer is required to deliver a Prospectus in connection
with a sale of any Exchange Notes received by such Participating Broker-Dealer
pursuant to the Registered Exchange Offer in exchange for Transfer Restricted
Notes acquired for its own account as a result of market-making activities or
other trading activities, and (ii) the Initial Purchaser is required to deliver
a prospectus containing the information required by Items 507 and 508 of
Regulation S-K in connection with any sales of notes in exchange for Notes
constituting any portion of an unsold allotment. Accordingly, the Company will
allow Participating Broker-Dealers, the Initial Purchaser and other persons, if
any, with similar prospectus delivery requirements to use the Prospectus
contained in the Exchange Offer Registration Statement in connection with the
resale of Exchange Notes and shall:
(i)include the information set forth in Annex A hereto on the cover
of the Prospectus forming a part of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Registered Exchange Offer, in Annex C hereto in the underwriting or plan
of distribution section of the Prospectus forming a part of the Exchange
Offer Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer; and
(ii)use its best efforts to keep the Exchange Offer Registration
Statement continuously effective (subject to Section 2(d)) under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus included therein in connection with sales of Exchange Notes
received pursuant to the Registered Exchange Offer, as contemplated by
Section 5(h) below.
(g) In the event that the Initial Purchaser determines that it is
not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial Purchaser,
the Company shall issue and deliver to the Initial Purchaser, or to the party
purchasing Transfer Restricted Notes registered under the Shelf Registration
Statement from such Initial Purchaser, in exchange for such Transfer Restricted
Notes, a like principal amount of Exchange Notes to the extent permitted by
applicable law. The Company shall use its reasonable efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as
for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company is not permitted to
file the Exchange Offer Registration Statement or to Consummate the Registered
Exchange Offer because the Registered Exchange Offer is not permitted by
applicable law or Commission policy, (ii) for any other reason the Registered
Exchange Offer is not Consummated within 30 Business Days of the date the
Exchange Offer Registration Statement has become effective, (iii) the Initial
Purchaser so requests with respect to Notes acquired by it directly from the
Company (including, without limitation, pursuant to Section 2(g)) which have
not been resold on or prior to the 20th Business Day following the Consummation
of the Registered Exchange Offer, (iv) any Holder notifies the Company on or
prior to the 20th Business Day following the Consummation of the registered
Exchange Offer that (A) such Holder is not eligible to participate in the
Registered Exchange Offer, if such Holder is not an Affiliate of the Company,
(B) the Exchange Notes such Holder would receive would not be freely tradable,
or (C) such Holder is a Participating Broker-Dealer that cannot publicly resell
the Exchange Notes that it acquires in the Registered Exchange Offer without
delivering a Prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for resales following
the completion of the Registered Exchange Offer, (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or
508 of Regulation S-K under the Act in connection with sales of Exchange Notes
acquired in exchange for such Transfer Restricted Notes shall result in such
Exchange Notes being not "freely tradable" and (y) the requirement that a
Participating Broker-Dealer deliver a Prospectus in connection with sales of
Exchange Notes acquired in the Registered Exchange Offer in exchange for
Transfer Restricted Notes acquired as a result of market-making activities or
other trading activities shall not result in such Exchange Notes being not
"freely tradable"), the following provisions shall apply:
(b) The Company shall use best efforts to prepare and file with
the Commission a Shelf Registration Statement prior to the 120th day following
the earliest to occur of (i) the date on which the Company determines that it
is not permitted to file the Exchange Offer Registration Statement or to
Consummate the Exchange Offer; (ii) 30 Business Days after the Exchange Offer
Registration Statement has been declared effective if the Registered Exchange
Offer has not been Consummated by such date and (iii) the date notice is given
pursuant to Section (a)(iii), (iv) or (v) above (or if such 120th day is not a
Business Day, by the first Business Day thereafter) and shall use its best
efforts to cause the Shelf Registration Statement to be declared effective by
the Commission by the later to occur of: (A) 180 days after the Company becomes
obligated to use its best efforts to file a Shelf Registration Statement
pursuant to this Section 3(b) and (B) 210 days after the date of this
Agreement. With respect to Exchange Notes received by the Initial Purchaser in
exchange for Notes constituting any portion of an unsold allotment, the Company
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under this paragraph (b) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(c) The Company shall use its best efforts to keep such Shelf
Registration Statement continuously effective (subject to Section 3(d)) in
order to permit the Prospectus forming a part thereof to be usable by Holders
until the earliest of (i) such time as the Notes or Exchange Notes covered by
the Shelf Registration Statement can be sold without any limitations under
clauses (c), (e), (f) or (h) of Rule 144, (ii) two years from the date on which
the Shelf Registration Statement was filed exclusive of any period during which
any stop order shall be in effect suspending the effectiveness of the Exchange
Offer Registration Statement or during which the Company has suspended the use
of the Prospectus contained therein pursuant to Section 3(d) and (iii) such
date as of which all the Transfer Restricted Notes have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period").
(d) The Company may suspend the use of the Prospectus for up to
three periods not to exceed 90 days in any twelve-month period for valid
business reasons, to be determined by the Company in its reasonable judgment
(not including avoidance of its obligations hereunder), including, without
limitation, pending acquisitions or divestitures of assets, mergers and
combinations and similar events; provided that
(i) the Company promptly thereafter complies with the requirements
of Section 5(k) hereof, if applicable;
(ii)the period during that the Registration Statement is required
to be effective and usable shall be extended by the number of days during
which such Registration Statement was not effective or usable pursuant to
the foregoing provisions; and
(iii)the Liquidated Damages shall accrue on the Notes as provided
in Section 4 hereof.
(e) No Holder of Transfer Restricted Notes may include any of its
Transfer Restricted Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 Business Days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Transfer Restricted Notes shall be entitled to
Liquidated Damages pursuant to Section 4 hereof unless and until such Holder
shall have used its best efforts to provide all such reasonably requested
information. Each Holder of Transfer Restricted Notes as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not misleading.
4. Liquidated Damages.
(a) The parties hereto agree that Holders will suffer damages if
the Company fails to perform its obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such
damages. Accordingly, in the event that (i) the applicable Registration
Statement is not filed with the Commission on or prior to the date specified
herein for such filing, (ii) the applicable Registration Statement has not been
declared effective by the Commission on or prior to the date specified herein
for such effectiveness after such obligation arises, (iii) if the Registered
Exchange Offer is required to be Consummated hereunder, the Registered Exchange
Offer has not been Consummated by the Company within the time period set forth
in Section 2(a) hereof, (iv) prior to the end of the Exchange Offer
Registration Period or the Shelf Registration Period, the Commission shall have
issued a stop order suspending the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
or proceedings have been initiated with respect to the Registration Statement
under Section 8(d) or 8(e) of the Act, (v) the aggregate number of days in any
one such suspension period exceeds the period permitted pursuant to Section
2(d) or 3(d) hereof, as each may be applicable, or (vi) the number of
suspension periods exceeds the number permitted pursuant to Section 2(d) or
3(d) hereof, as each may be applicable (each such event referred to in clauses
(i) through (vi), a "Registration Default"), then damages ("Liquidated
Damages") will accrue with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to
$0.05 per week per $1,000 principal amount of Transfer Restricted Notes and
will increase by an additional $0.05 per week per $1,000 principal amount of
such Transfer Restricted Notes for each subsequent 90-day period until such
Registration Default has been cured, up to an aggregate maximum amount of
Liquidated Damages of $0.20 per week per $1,000 principal amount of Notes for
all Registration Defaults. Following the cure of a Registration Default, the
accrual of Liquidated Damages with respect to such Registration Default will
cease and upon the cure of all Registration Defaults the accrual of all
Liquidated Damages will cease. Notwithstanding the foregoing, (x) the Company
will not be required to pay Liquidated Damages for more than one Registration
Default at any one time, and (y) if the Registered Exchange Offer has been
Consummated, Liquidated Damages related to a Registration Default for a Shelf
Registration Statement shall not be payable in respect of Notes issued in the
Registered Exchange Offer except to the extent entitled to registration under
such Shelf Registration Statement under clause 3(a)(iii) or (iv) above.
(b) The Company shall notify the Trustee and paying agent under
the Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Company shall pay the Liquidated
Damages due on the Transfer Restricted Notes by depositing with the paying
agent (which shall not be the Company for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the Holders thereof, prior to
11:00 A.M. on the next interest payment date specified in the Indenture (or
such other indenture), sums sufficient to pay the Liquidated Damages then due.
The Liquidated Damages due shall be payable on each interest payment date
specified by the Indenture (or such other indenture) to the record holders
entitled to receive the interest payment to be made on such date. Each
obligation to pay Liquidated Damages shall be deemed to accrue from and include
the date of the applicable Registration Default.
(c) The parties hereto agree that the Liquidated Damages provided
for in this Section 4 constitutes a reasonable estimate of the damages that
will be suffered by holders of Transfer Restricted Notes by reason of the
happening of any Registration Default.
5. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior to
the filing thereof with the Commission, a copy of any Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its reasonable best efforts to
reflect in each such document, when so filed with the Commission, such comments
as the Initial Purchaser reasonably may propose.
(b) The Company shall ensure that:
(i)any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Act;
(ii)any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(iii)any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided that no representation or agreement is made hereby with respect to
information with respect to the Initial Purchaser, any Underwriter or any
Holder required to be included in any Registration Statement or Prospectus
pursuant to the Act or provided by the Initial Purchaser, any Holder or any
Underwriter specifically for inclusion in any Registration Statement or
Prospectus.
(c) (1) The Company shall advise the Initial Purchaser and, in
the case of a Shelf Registration Statement, the Holders of Transfer Restricted
Notes covered thereby, and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i)when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii)of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) The Company shall advise the Initial Purchaser and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted
Notes covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Participating Broker-Dealer that has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser or any such Holder or Participating Broker-
Dealer, confirm such advice in writing:
(i)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 purpose;
(ii)of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Transfer Restricted Notes
included in any Registration Statement for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; and
(iii)of the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Company shall use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Transfer
Restricted Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Notes included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Notes in connection with the offering and sale of the
Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Company shall furnish to each Participating Broker-Dealer
that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules.
(h) The Company shall, during the Exchange Offer Registration
Period and pursuant to the requirements of the Act for the resale of the
Exchange Notes during the period in which a prospectus is required to be
delivered under the Act (including any Commission no-action letters relating to
the Registered Exchange Offer), deliver to each Participating Broker-Dealer,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Participating Broker-Dealer may
reasonably request; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by any such Participating Broker-Dealer in
connection with the offering and sale of the Exchange Notes, as provided in
Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other offering
of Notes pursuant to any Registration Statement, the Company shall cooperate
with the Holders of Transfer Restricted Notes included therein and their
respective counsel in connection with the registration or qualification of such
Transfer Restricted Notes for offer and sale under the securities or blue sky
laws of such states as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Transfer Restricted Notes covered by such
Registration Statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction in which it is
not then so qualified, to file any general consent to service of process or to
take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(j) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Notes to be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations and registered in such names as
Holders may request prior to sales of Transfer Restricted Notes pursuant to
such Registration Statement.
(k) Subject to Section 2(d) and Section 3(d), upon the occurrence
of any event contemplated by paragraph (c)(2)(iii) of this Section 5, the
Company shall promptly prepare and file a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or any other required document so that, as thereafter delivered to purchasers
of the Transfer Restricted Notes included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(l) The Company shall use its reasonable best efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Registration Statement hereunder or as soon as reasonably
possible thereafter to remove (i) from any existing CUSIP number assigned to
the Transfer Restricted Notes or Exchange Notes, as the case may be, any
designation indicating that such notes are "restricted securities," which
efforts shall include delivery to DTC of a letter executed by the Company
substantially in the form of Annex E hereto and (ii) any other stop or
restriction on DTC's system with respect to the Transfer Restricted Notes or
Exchange Notes, as the case may be. In the event the Company is unable to
cause DTC to take actions described in the immediately preceding sentence, the
Company shall take such actions as the Initial Purchaser may reasonably request
to provide, as soon as practicable, a CUSIP number for the Transfer Restricted
Notes or Exchange Notes registered under such Registration Statement and to
cause such CUSIP number to be assigned to the Transfer Restricted Notes or
Exchange Notes (or to the maximum aggregate principal amount of the securities
to which such number may be assigned).
(m) The Company shall use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(n) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Transfer Restricted
Notes to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
Transfer Restricted Notes as may, from time to time, be reasonably required by
the Act, and the obligations of the Company to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(p) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement (i) such information as the Majority Holders reasonably request or,
if the Transfer Restricted Notes are being sold in an underwritten offering, as
the Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provided to the Company in writing for inclusion in the
Shelf Registration Statement or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Notes and, in either case,
shall make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements (including underwriting agreements) and take
all other customary and appropriate actions as may be reasonably requested in
order to expedite or facilitate the registration or the disposition of any
Transfer Restricted Notes, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification and
contribution provisions and procedures no less favorable than those set forth
in Section 8 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any, with respect to all
parties to be indemnified pursuant to Section 8).
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i)make reasonably available for inspection by the Holders of
Transfer Restricted Notes to be registered thereunder, any Managing
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Managing Underwriter, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and any of its subsidiaries;
(ii)cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
Managing Underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by the Company as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any such
Managing Underwriter, attorney, accountant or agent, unless (x)
disclosure thereof is made in connection with a court proceeding or
required by law; provided that each Holder and any such Managing
Underwriter, attorney, accountant or agent will, upon learning that
disclosure of such information is sought in a court proceeding or
required by law, give reasonable notice to the Company with enough time
to allow the Company to undertake appropriate action to prevent
disclosure at the Company's sole expense, or (y) such information has
previously been made or becomes available to the public generally through
the Company or through a third party without an accompanying obligation
of confidentiality;
(iii)in the case of an underwritten offering of the Notes, make
such representations and warranties in the underwriting agreement in
form, substance and scope substantially similar to those set forth in the
Purchase Agreement;
(iv)obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed
to each selling Holder and the Managing Underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and Managing Underwriters;
(v)in the case of an underwritten offering of the Notes, obtain
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of the Transfer
Restricted Notes covered by such Shelf Registration Statement (provided
such Holder furnishes the accountants with such representations as the
accountants customarily require in similar situations) and the Managing
Underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings;
(vi)deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 5(i) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company; and
(vii)The foregoing actions set forth in this Section 5(r) shall be
performed at (x) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto and (y) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) The Company shall, if and to the extent required under the Act
and/or the Trust Indenture Act and the rules and regulations thereunder in
order to register the Transfer Restricted Notes (including any guarantees
thereof) under the Act and qualify the Indenture under the Trust Indenture Act,
cause each guarantor, if any, to sign any Registration Statement and take all
other action necessary to register any such guarantees under the applicable
Registration Statement.
6. Registration Expenses. The Company shall bear all fees and
expenses (including the fees and expenses, if any, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, L.L.P., counsel for the Initial Purchaser, incurred in connection
with the Registered Exchange Offer) incurred in connection with the performance
of its obligations under Sections 2, 3, 4 and 5 hereof (other than brokers',
dealers' and underwriters' discounts and commissions and brokers', dealers' and
underwriters' counsel fees) and shall reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel designated by the Majority
Holders to act as counsel for the Holders in connection therewith.
7. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Transfer
Restricted Notes, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A.
The Company covenants that it will take such further action as any Holder of
Transfer Restricted Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)).
8. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of Transfer Restricted Notes
covered thereby, the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment
thereof, in any preliminary Prospectus or Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are based upon 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, and agree
to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (A) any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
relating to the Holder furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein, (B) use of a Registration Statement
or the related Prospectus during a period when a stop order has been issued in
respect of such Registration Statement or any proceedings for that purpose have
been initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 5(c); provided, further, in each case, that
Holders received prior notice of such stop order, initiation of proceedings or
suspension or (C) if the Holder is required to but does not deliver a
Prospectus or the then current Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Company, its directors, officers, employees and agents and each person who
controls the Company within the meaning of either the Act or the Exchange Act
to the same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on the advice of outside counsel, that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall have authorized
the indemnified party to employ separate counsel at the expense of the
indemnifying party; provided further, that the indemnifying party shall not be
responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a) or paragraph (b) above. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Registration Statement which resulted in such Losses; provided, however, that
in no case shall any Managing Underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the Transfer
Restricted Notes purchased by such Managing Underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (x)
the aggregate principal amount of the Notes and (y) the total amount of
Liquidated Damages which the Company was not required to pay as a result of
registering the Transfer Restricted Notes covered by the Registration Statement
which resulted in such Losses. Benefits received by any Holder shall be deemed
to be equal to the value of receiving Transfer Restricted Notes registered
under the Act. Benefits received by any Managing Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth
on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls a Holder of Transfer
Restricted Securities within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of such Holder shall have the
same rights to contribution as such Holder, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section 8 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive the sale by a Holder of Transfer Restricted
Notes covered by a Registration Statement.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into nor shall it, on or after the date hereof, enter into
any agreement that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Transfer Restricted Notes
are being sold pursuant to a Shelf Registration Statement or whose Notes are
being exchanged pursuant to an Exchange Offer Registration Statement, as the
case may be, and which does not directly or indirectly affect the rights of
other Holders may be given by such Holders, determined on the basis of Notes
being sold rather than registered. Notwithstanding any of the foregoing, no
amendment, modification, supplement, waiver or consents to any departure from
the provisions of Section 8 hereof shall be effective as against any Holder of
Transfer Restricted Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
Wachovia Securities, Inc.
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: High Yield Origination
(ii)if to any other Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 9(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the registrar under the
Indenture, with a copy in like manner to the Initial Purchaser; and
(iii) if to the Company, as follows:
DIMON Incorporated
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
All such notices and communications shall be deemed to have been
duly given when received, if delivered by hand or air courier, and when sent,
if sent by first-class mail, telex or telecopier.
The Company by notice to the others may designate additional or
different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company thereto, subsequent Holders. The Company hereby agrees to
extend the benefits of this Agreement to any Holder and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) Counterparts. This Agreement may be executed in any number of
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.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State, without regard to the
conflicts of law rules thereof.
(h) Obligations of Material Domestic Subsidiaries. If any person
becomes a Material Domestic Subsidiary (as defined in the Indenture) after the
date hereof and while the Company has continuing obligations under this
Agreement, the Company will cause such Material Domestic Subsidiary to become a
party hereto including, without limitation, for purposes of registration
obligations, the guarantee of Liquidated Damages on a joint and several basis
and indemnification and contribution pursuant to Section 8.
(i) Severability. In the event that any one or more of the
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 in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Transfer
Restricted Notes or Exchange Notes is required hereunder, Transfer Restricted
Notes or Exchange Notes held by the Company or its respective Affiliates (other
than subsequent Holders of Transfer Restricted Notes or Exchange Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
10. Automatic Assignment. On or about June 1, 2003, Wachovia
Securities, Inc. will be converted into Wachovia Securities, LLC, a Delaware
limited liability company ("WSL"). The parties hereto acknowledge and agree
that, as a result of such conversion, the rights and obligations of Wachovia
Securities, Inc. hereunder shall become rights and obligations of ▇▇▇. ▇▇ or
about July 1, 2003, certain businesses of the WSL will be transferred, assigned
or otherwise conveyed (the occurrence of such event, the "Transfer") to
Wachovia Capital Markets, LLC or another newly formed affiliate of WSL ("WCM").
Each of the parties hereto expressly consents to the assignment by WSL of all
of its rights and obligations hereunder and under the Purchase Agreement to WCM
simultaneously with the Transfer. Each of the parties acknowledges and agrees
that upon the occurrence of the Transfer, such assignment shall be effective
without any further action by any of the parties hereto and from and after the
Transfer: (i) WCM shall be a party hereto and shall have all rights and
obligations of WSL hereunder and under the Purchase Agreement and (ii) WSL
shall cease to be a party hereto and shall be released from its obligations
hereunder and under the Purchase Agreement.
Please confirm that the foregoing correctly sets forth the
agreement between and among the Company and the Initial Purchaser.
Very truly yours,
DIMON Incorporated
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President -
Chief Financial Officer
The foregoing Agreement is hereby
accepted as of the date first written above
WACHOVIA SECURITIES, INC.
as the Initial Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, during the Exchange Offer
Registration Period, it will make this Prospectus available to any broker-
dealer for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, during
the Exchange Offer Registration Period, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until ____________ 2003, all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their
own account pursuant to the Registered Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Registered Exchange Offer
and any broker or dealer that participates in a distribution of such Exchange
Notes may be deemed to be an "underwriter" within the meaning of the Act and
any profit from any such resale of Exchange Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a broker-
dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For the Exchange Offer Registration Period, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one
counsel for the holders of the Notes) other than dealers' and brokers'
discounts, commissions and counsel fees) and will indemnify the holders of the
Notes (including any broker-dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
Address:
The undersigned represents that it is not an Affiliate of the
Company, that any Exchange Notes to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Registered Exchange Offer it had no arrangement with any person to participate
in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by
it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY THE COMPANY TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
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Re: 7 3/4% Senior Notes Due 2013 (the "Notes") of DIMON
Incorporated
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-__ under the Securities
Act of 1933, as amended, with regard to all of the Notes referenced above.
Accordingly, there is no longer any restriction as to whom such Notes may be
sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
Authorized Officer
1324: