Exhibit 10.2
Execution Version
$570,000,000
ALLIANCE ONE INTERNATIONAL,
INC.
10% Senior Notes due
2016
REGISTRATION RIGHTS
AGREEMENT
July 2, 2009
Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Alliance One International, Inc., a
Virginia corporation (the “Issuer”), proposes to issue
and sell to Credit Suisse Securities (USA) LLC as Representative of
the initial purchasers set forth on Schedule A of the Purchase
Agreement (as defined below) (collectively, the “Initial
Purchasers”), upon the terms set forth in a purchase
agreement of even date herewith (the “Purchase
Agreement”), $570,000,000 aggregate principal amount of its
10% senior notes due 2016 (the “Initial Securities”) to
be unconditionally guaranteed (the “Guaranties”) by the
creation or acquisition of a Material Domestic Subsidiary (as
defined in the Indenture) after the date of the Indenture (the
“Guarantors” and together with the Issuer, the
“Company”). The Initial Securities will be issued
pursuant to an Indenture, dated as of July 2, 2009 (the
“Indenture”) between the Company, Law Debenture Trust
Company of New York (the “Trustee”) and Deutsche Bank
Trust Company Americas, as registrar and paying agent. As an
inducement to the Initial Purchasers, the Company agrees with the
Initial Purchasers, for the benefit of the holders of the Initial
Securities (including, without limitation, the Initial Purchasers),
the Exchange Securities (as defined below) and the Private Exchange
Securities (as defined below) (collectively the
“Holders”), as follows:
1. Registered Exchange
Offer . The Company shall use its commercially reasonable
efforts, at its own cost, to prepare and, not later than 180 days
after (or if the 180th day is not a business day, the first
business day thereafter) the date of original issue of the Initial
Securities (the “Issue Date”), file with the Securities
and Exchange Commission (the “Commission”) a
registration statement (the “Exchange Offer Registration
Statement”) on an appropriate form under the Securities Act
of 1933, as amended (the “Securities Act”), with
respect to a proposed offer (the “Registered Exchange
Offer”) to the Holders of Entitled Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy
of the Commission from participating in the Registered Exchange
Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt
securities (the “Exchange Securities”) of the Issuer
issued under the Indenture and identical in all material respects
to the Initial Securities (except for the transfer restrictions
relating to the Initial Securities and the provisions relating to
the matters described in Section 6 hereof) that would be
registered under the Securities Act. The Company shall use its
commercially reasonable efforts to have such Exchange Offer
Registration Statement declared effective by the Commission on or
prior to 270 days (or if the 270th day is not a business day, the
first business day thereafter) after the Issue Date of the Initial
Securities (the “Effectiveness Target
Date”).
Unless the Registered Exchange Offer
would not be permitted by applicable law or Commission policy, the
Company will (a) commence the Registered Exchange Offer; and
(b) use all commercially reasonable efforts to issue on or
prior to 30 business days, or longer, if required by applicable
securities laws, after the date on which the Exchange Offer
Registration Statement was declared effective by the Commission,
exchange notes in exchange for all notes validly tendered and not
withdrawn thereto in the Registered Exchange Offer (the
“Exchange Offer Registration Period”).
The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an “Exchanging
Dealer”), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover,
(b) Annex B hereto in the “Exchange Offer
Procedures” section and the “Purpose of the Exchange
Offer” section, and (c) Annex C hereto in the
“Plan of Distribution” section of such prospectus in
connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer
and (ii) an Initial Purchaser that elects to sell Exchange
Securities acquired in exchange for Securities constituting any
portion of an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company shall use its
commercially reasonable efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to
be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to
resell the Exchange Securities; provided, however , that
(i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an
Initial Purchaser, such period shall be the lesser of 180 days and
the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period
is extended pursuant to Section 3(j) below) and (ii) the
Company shall make such prospectus and any amendment or supplement
thereto, available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than
90 days after the consummation of the Registered Exchange
Offer.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Issuer, simultaneously with the delivery of the Exchange Securities
pursuant to the Registered Exchange Offer, shall issue and deliver
to such Initial Purchaser upon the written request of such Initial
Purchaser, in exchange (the “Private Exchange”) for the
Initial Securities held by such Initial Purchaser, a like principal
amount of debt securities of the Issuer issued under the Indenture
and identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but
excluding provisions relating to the matters described in
Section 6 hereof) to the Initial Securities (the
“Private Exchange Securities”). The Initial Securities,
the Exchange Securities and the Private Exchange Securities are
herein collectively called the “Securities”.
In connection with the Registered
Exchange Offer, the Issuer shall:
(a) 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;
(b) keep the Registered
Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date notice thereof is mailed
to the Holders;
(c) utilize the services of a
depositary for the Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
2
(d) permit Holders to withdraw
tendered Securities at any time prior to the close of business, New
York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
(e) otherwise comply with all
applicable laws.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Issuer shall:
(x) accept for exchange all the
Securities validly tendered and not withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for
cancellation all the Initial Securities so accepted for exchange;
and
(z) cause the Trustee to
authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as
the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Issuer that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding
with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an
“affiliate,” as defined in Rule 405 of the Securities
Act, of the Company, or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements
of the Securities Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it
will receive Exchange Securities for its own account in exchange
for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange
Securities.
Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer 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 Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. Shelf Registration .
If, (i) the Company is not permitted to consummate the
Registered Exchange Offer because the Registered Exchange Offer is
not permitted by applicable law or Commission policy; or
(ii) any holder of the Entitled Securities notifies the
Company prior to the 20 th business day following consummation of the
Registered Exchange Offer that: (a) it is prohibited by law or
Commission policy from participating in the Registered Exchange
Offer, (b) it may not resell the exchange notes acquired by it
in the Registered Exchange Offer to the public without delivering a
prospectus (other than by reason of such holder’s status as
an affiliate of
3
the Company) and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales; or (c) it is a broker-dealer and
owns notes acquired directly from the Company or an affiliate of
the Company then the Company shall take the following
actions:
(a) The Company shall, at its
own cost, use its commercially reasonable efforts to file with the
Commission (the “Shelf Registration Statement” and,
together with the Exchange Offer Registration Statement, a
“Registration Statement”) and to cause the Shelf
Registration Statement to be declared effective by the Commission
on or prior to 90 days after such obligation arises pursuant to
this Section 2 (the “Shelf Effectiveness Target
Date”). The Shelf Registration Statement shall be filed on an
appropriate form under the Securities Act relating to the offer and
sale of the Entitled Securities (as defined in Section 6
hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the
“Shelf Registration”); provided, however , that
no Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such Holder and
provided, further , that with respect to Exchange Securities
received by an Initial Purchaser in exchange for Securities
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
Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of its obligations under this subsection, 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.
(b) The Company shall use its
commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the
Issue Date or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement have been
sold pursuant thereto. The Company shall be deemed not to have used
its commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during
that period, unless such action is required by applicable
law.
(c) Notwithstanding any other
provisions of this Agreement to the contrary, the Company shall
cause the Shelf Registration Statement and the related prospectus
and any amendment or supplement thereto, as of the effective date
of the Shelf Registration Statement, amendment or supplement,
(i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of
the Commission and (ii) not to contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
3. Registration
Procedures . In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall
apply:
(a) The Company shall
(i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use
its commercially reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B
hereto in the “Exchange Offer
4
Procedures” section and the
“Purpose of the Exchange Offer” section and in Annex C
hereto in the “Plan of Distribution” section of the
prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled “Plan of
Distribution,” reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission
with respect to the potential “underwriter” status of
any broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) of Exchange Securities received by
such broker-dealer in the Registered Exchange Offer (a
“Participating Broker-Dealer”), whether such positions
or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include in the prospectus included in the
Shelf Registration Statement (or, if permitted by Commission
Rule 430B(b), in a prospectus supplement that becomes a part
thereof pursuant to Commission Rule 430B(f)) that is delivered
to any Holder pursuant to Section 3(d) and (f), the names
of the Holders, who propose to sell Securities pursuant to the
Shelf Registration Statement, as selling
securityholders.
(b) The Company shall give
written notice to the Initial Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration
Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the
Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) 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, of the issuance by the Commission of a notification
of objection to the use of the form on which the Registration
Statement has been filed, and of the happening of any event that
causes the Issuer to become an “ineligible issuer,” as
defined in Commission Rule 405.
(iv) of the receipt by the
Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(v) of the happening of any
event that requires the Company to make changes in the Registration
Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a
material fact nor 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.
(c) The Company shall make
every commercially reasonable effort to obtain the withdrawal at
the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
5
(d) The Company shall furnish
to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). The Company
shall not, without the prior consent of the Initial Purchasers,
make any offer relating to the Securities that would constitute a
“free writing prospectus,” as defined in Commission
Rule 405.
(e) The Company shall deliver
to each Exchanging Dealer and each Initial Purchaser, and to any
other Holder who 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,
and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during
the Shelf Registration Period, deliver to each Holder of Securities
included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver
to each Initial Purchaser, any Exchanging Dealer, any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge,
as many copies of the final prospectus included in the Exchange
Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use
of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and
sale of the Exchange Securities covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public
offering of the Securities, pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities
for offer and sale under the securities or “blue sky”
laws of such states of the United States as any Holder of the
Securities reasonably requests 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 Securities covered by such
Registration Statement; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall cooperate
with the Holders of the Securities to facilitate the timely
preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered
in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence of any
event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the
Company shall promptly prepare and file a post-effective amendment
to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the
6
statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (v) of Section 3(b)
above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial
Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall
each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j). During
the period during which the Company is required to maintain an
effective Shelf Registration Statement pursuant to this Agreement,
the Company will, prior to the three-year expiration of that Shelf
Registration S
