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EXHIBIT 4.9
EXECUTION COPY
NEW PIK NOTES
REGISTRATION RIGHTS AGREEMENT
BY
PREMIUM STANDARD FARMS, INC.
FOR THE BENEFIT OF
THE HOLDERS NAMED HEREIN
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DATED AS OF SEPTEMBER 17, 1996
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1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Demand Registrations. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Piggyback Registration. . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Blackout Periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Registration Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Underwritten Offerings. . . . . . . . . . . . . . . . . . . . . . . . . 12
9. Preparation; Reasonable Investigation. . . . . . . . . . . . . . . . . . 14
10. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11. Registration Rights to Others. . . . . . . . . . . . . . . . . . . . . . 18
12. Adjustments Affecting Registrable Notes. . . . . . . . . . . . . . . . . 19
13. Rule 144 and Rule 144A. . . . . . . . . . . . . . . . . . . . . . . . . 19
14. Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 19
15. Nominees for Beneficial Owners. . . . . . . . . . . . . . . . . . . . . 19
16. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17. Calculation of Percentage of Principal Amount of Registrable Notes. . . 20
18. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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NEW PIK NOTES REGISTRATION RIGHTS AGREEMENT
NEW PIK NOTES REGISTRATION RIGHTS AGREEMENT, dated as of September 17,
1996 (this "Agreement"), by Premium Standard Farms, Inc., a Delaware
corporation (the "Company"), for the benefit of the holders of Registrable
Notes (as hereinafter defined) (the "Holders").
This Agreement is being entered into in accordance with the Plan in
connection with the acquisition of Notes (each as hereinafter defined) by
certain holders (the "Initial Holders") pursuant to the Plan.
To induce the holders of "Registrable Notes" (as hereinafter defined)
to vote in favor of the Plan and to accept the issuance of the Notes by the
Company under the Plan, the Company has undertaken to register Registrable
Notes under the "Securities Act" (as hereinafter defined) and to take certain
other actions with respect to the Registrable Notes. This Agreement sets forth
the terms and conditions of such undertaking.
In consideration of the premises and the mutual agreements set forth
herein, the Company hereby agrees as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used
herein and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, is under common control with, or
is controlled by, such other Person. For purposes of this definition,
"control" means the ability of one Person to direct the management and policies
of another Person, whether by means of contract, securities ownership, or
otherwise.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to be
closed.
"Commission" means the United States Securities and Exchange
Commission.
"Company" has the meaning provided in the preamble hereto.
"Company Indemnitee" has the meaning provided in Section 10 hereof.
"Demand Registration" means any registration pursuant to Section 3
hereof.
"Disadvantageous Condition" has the meaning provided in Section 5
hereof.
"Effectiveness Period" has the meaning provided in Section 2 hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, or any similar or
successor statute.
"Expenses" means all expenses incident to the Company's performance of
or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees,
all fees and expenses of complying with state securities or blue sky laws
(including fees, disbursements and other charges of counsel for the
underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with "comfort" letters required by or incurred in
connection with "comfort" letters required by or incident to such performance
and compliance, any fees and disbursements of underwriters customarily paid by
issuers and sellers of securities and the reasonable fees, disbursements and
other charges of one firm of counsel (per registration prepared) chosen by the
Holders of a majority of the aggregate principal amount of Registrable Notes,
but excluding broker-dealer and underwriting concessions, allowances, discounts
and commissions and applicable transfer taxes, if any, which concessions,
allowances, discounts, commissions and transfer taxes shall be borne by the
seller or sellers of Registrable Notes in all cases.
"Holder" means (i) the Initial Holders and (ii) any transferees of the
Registrable Notes (a) whose Notes continue to be Registrable Notes and (b) who
have been assigned the transferor's rights under Section 16 hereof.
"Holder Indemnitee" shall have the meaning provided in Section 10
hereof.
"Indenture" means the Indenture between the Company and Fleet National
Bank, as trustee (the "Trustee"), dated as of September 17, 1996, as amended
from time to time, relating to the Notes.
"Initial Shelf Registration" has the meaning set forth in Section 2
hereof.
"Initiating Holders" has the meaning set forth in Section 3 hereof.
"Loss" and "Losses" shall have the meaning provided in Section 10
hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"Notes" means (i) up to $117,500,000 aggregate principal amount of 11%
Senior Secured Notes due 2003 to be issued pursuant to the Plan and (ii) any
notes issued for the
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payment of interest pursuant to Section 3.7 of the Indenture, and includes any
securities of the Company issued or issuable with respect to such securities by
way of a recapitalization, merger, consolidation, reorganization or otherwise.
"Offering Documents" shall have the meaning provided in Section 10
hereof.
"Parent" means PSF Holdings, L.L.C., being the holder of all of the
equity of the Company, and includes any successor in interest to PSF Holdings,
L.L.C. which is a holder of all of the equity of the Company, whether by
merger, consolidation or reorganization or otherwise.
"Person" means any individual, corporation, partnership, firm, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental or regulatory body or subdivision
thereof or other entity.
"Plan" means the joint plan of reorganization of PSF Finance L.P. and
certain affiliated entities as confirmed by the United States Bankruptcy Court
for the District of Delaware by order entered September 6, 1996.
"Public Offering" means a public offering and sale of securities
pursuant to an effective registration statement under the Securities Act.
"Registrable Notes" means the Notes held by the Initial Holders (and
permissible transferees of such Registrable Notes pursuant to Section 16 hereof
which become "Holders" hereunder); provided, however, that Registrable Notes
shall cease to be Registrable Notes upon (i) any sale or distribution thereof
pursuant to an effective registration statement under the Securities Act; (ii)
any sale or distribution permitting the recipient thereof to sell such
securities without restriction under the Securities Act and any state
securities laws; or (iii) the receipt by a Holder of such Registrable Notes of
an opinion, satisfactory in form and substance to such Holder, by legal
counsel, reasonably acceptable to such Holder, to the effect that the public
sale or distribution of such Notes without restriction under the Securities Act
and any state securities laws does not require the registration of such Notes
under the Securities Act and any state securities laws or the use of an
applicable exemption therefrom; and provided, further, that any Notes described
in clause (ii) of the definition of "Notes" herein shall not be Registrable
Notes if such Notes are issued for the payment of interest on any Notes which
are not then Registrable Notes.
"Requesting Holders" has the meaning set forth in Section 4 hereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, or any similar or successor
statute.
"Shelf Registration" has the meaning set forth in Section 2 hereof.
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"Subsequent Shelf Registration" has the meaning set forth in Section 2
hereof.
2. Shelf Registration.
a. Initial Shelf Registration. The Company shall (i)
cause to be filed as soon as practicable, but not
later than April 30, 1997, a shelf registration
statement pursuant to Rule 415 promulgated under the
Securities Act (the "Initial Shelf Registration")
providing for the sale by the Holders, from time to
time, of all of the Registrable Notes and (ii) use its
best efforts to have such Initial Shelf Registration
thereafter declared effective by the Commission not
later than June 30, 1997.
b. Subsequent Shelf Registrations. If the Initial Shelf
Registration is withdrawn or otherwise becomes
unavailable for use prior to the end of the
Effectiveness Period, then promptly following (or, if
possible, prior to) such withdrawal or unavailability
the Company shall file, and shall use its best efforts
to cause the Commission to declare effective, a
subsequent registration statement for a secondary
offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act covering all of the
Registrable Notes which remain outstanding (a
"Subsequent Shelf Registration"). To the extent the
Company is aware of such withdrawal or unavailability
prior to the occurrence of same, it shall use its best
efforts to have the Subsequent Shelf Registration
filed at such time prior to such withdrawal or
unavailability which is reasonably calculated to cause
the Subsequent Shelf Registration to become effective
on or before the date of such withdrawal or
unavailability, and, in any event, on or before 180
days prior to such withdrawal or unavailability.
c. Amendments or Subsequent Shelf Registrations. If the
Initial Shelf Registration (except as provided in
Section 2(b)) or any Subsequent Shelf Registration
ceases to be effective for any reason at any time
during the Effectiveness Period for a reason other
than because of the sale of all of the Registrable
Notes covered thereby, subject to Section 2(b), the
Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, within
60 days of such cessation of effectiveness, amend such
Initial Shelf Registration or Subsequent Shelf
Registration in a manner reasonably calculated to
obtain the withdrawal of the order suspending the
effectiveness thereof, or shall file an additional
"shelf" registration statement pursuant to Rule 415
covering all of such Registrable Notes which remain
unsold. (Each of the Initial Shelf Registration and
the Subsequent Shelf Registration are referred to
individually herein as a "Shelf Registration" and
collectively as the "Shelf Registrations.")
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d. Effectiveness Period. The Company shall use
its best efforts to keep the Shelf Registration
(including the Initial Shelf Registration and any
Subsequent Shelf Registration) continuously effective
under the Securities Act until the earlier to occur
of the fourth anniversary of the date on which the
Initial Shelf Registration became effective (the
"Effectiveness Period"), or the date on which all
Registrable Notes covered by the Initial Shelf
Registration have been sold; provided, however, that
the Effectiveness Period shall be extended
commensurate with any period during which a Shelf
Registration which previously has been declared
effective by the Commission no longer is in effect as
required by this Agreement, or during which sales
have been suspended pursuant to Section 5 or Section
7(g) hereof. If a Subsequent Shelf Registration is
filed, pursuant to Section 2(b) or 2(c) hereof, the
Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared
effective as soon as reasonably practicable after
such filing and to keep such Registration Statement
continuously effective for a period after such
effectiveness equal to the Effectiveness Period, less
the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf
Registration was previously in effect. The intent of
this provision is that the Shelf Registration
(including the Initial Shelf Registration and any
Subsequent Shelf Registration) shall be in effect for
a number of days, in the aggregate, equal to four
years; provided that a Shelf Registration shall not
be required to be maintained in effect after all of
the Registrable Notes have been sold thereunder or
otherwise distributed such that they are no longer
deemed to be Registrable Notes hereunder.
e. Extend Initial Shelf Registration. In lieu of
filing the Subsequent Shelf Registration required
under Section 2(b) hereof, the Company may, in its
sole discretion and if permitted by applicable law,
keep the Initial Shelf Registration continuously
effective for the remainder of the Effectiveness
Period or, if earlier, until all of the Registrable
Notes eligible to be included in the Shelf
Registrations have been sold hereunder such that they
are no longer Registrable Notes hereunder.
3. Demand Registrations.
a. Demand Rights. After the termination of the
Effectiveness Period, so long as not less than
$25,000,000 of Registrable Notes remain outstanding,
upon written notice to the Company from one or more
Holders (the "Initiating Holders") of Registrable
Notes holding in the aggregate 25% in principal
amount of Registrable Notes then outstanding,
requesting that the Company effect, pursuant to this
Section 3, the registration of such Initiating
Holders' Registrable Notes under the Securities Act
(which notice shall specify the Registrable Notes so
requested to be registered, the proposed amounts
thereof and the intended method or methods of
distribution by such Initiating
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Holders (including whether the proposed
offering is to be underwritten), the Company shall
promptly (but in any event within 15 days) give
written notice of such requested registration to all
Holders of Registrable Notes, and thereupon the
Company shall use its best efforts to effect the
registration under the Securities Act of: (A) the
Registrable Notes that the Initiating Holders have
requested the Company to register, for disposition in
accordance with the intended method or methods of
distribution stated in their notice to the Company;
and (B) all other Registrable Notes the Holders of
which shall have made a written request to the
Company for registration thereof (which request shall
specify such Registrable Notes and the proposed
amounts thereof) within 15 days after the receipt of
such written notice from the Company, as
expeditiously as possible (but in any event shall
file such registration statement within 60 days of
the receipt of such request by the Initiating
Holders), all to the extent requisite to permit the
disposition by Holders of the Registrable Notes then
constituting Registrable Securities so to be
registered.
b. Frequency; Duration. The Company shall be
obligated to effect only two registrations pursuant
to this Section 3 with respect to all Holders of
Registrable Notes. Notwithstanding the foregoing, the
Company shall not be required to effect a Demand
Registration pursuant to this Section 3: (i) if it
shall have so effected a Demand Registration during
the previous seven months; or (ii) during the period
starting with the date 30 days prior to the Company's
good faith estimate of the date of filing of, and
ending on the date 90 days following the effective
date of, a registration statement pertaining to an
underwritten public offering for the account of the
Company with respect to which Holders have piggyback
rights pursuant to Section 4 hereof; provided,
however, that a Demand Registration shall not be
deemed to have been effected for purposes of Section
(3)(b)(i) if the applicable registration statement
has not been declared effective and kept effective
until the earlier of (i) 90 days following the date
on which such registration statement was declared
effective and (ii) the sale pursuant to such
registration statement of the Registrable Notes
covered thereby; and, provided, further that in the
event a request for registration is refused pursuant
to (ii) above, if the Company then elects not to file
a registration statement or, if a registration
statement is filed, the Company elects not to
complete the proposed offering, the Company shall
notify in writing the Holders whose request for
registration has been refused pursuant to clause (ii)
above, and such Holders shall have the right, within
10 days after receiving written notice of the
Company's election, to request the Company to effect
the registration of Registrable Notes for the account
of Holders, and such registration shall be considered
a Demand Registration under this Section 3.
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c. Inclusion of Other Securities. The Company may
include in a Demand Registration securities held by
other Persons who have piggyback registration rights
pursuant to written agreements with the Company or
Parent; provided that Registrable Notes shall have
absolute priority over any such other securities in
connection with any cutback.
4. Piggyback Registration. If the Company or Parent, at any time prior
to the expiration of the Effectiveness Period when there is not in effect a
Shelf Registration for the Registrable Notes, proposes to register any of its
securities under the Securities Act or, at any time after the expiration of the
Effectiveness Period, proposes to register any of its securities, on any forms
(other than in connection with the registration of securities issued or
issuable pursuant to an employee stock option, stock purchase, stock bonus or
similar plan or dividend reinvestment plan or pursuant to a merger, business
combination, exchange offer or transaction of the type specified in Rule 145(a)
under the Securities Act), whether or not pursuant to registration rights
granted to other holders of its securities and whether or not for sale for its
own account, the Company shall give prompt written notice to all of the
Holders of its intention to do so and of such Holders' rights (if any) under
this Section 4, which notice, in any event, shall be given at least 20 days
prior to the filing with the Commission of such proposed registration. Upon
the written request of any Holder receiving notice of such proposed
registration (a "Requesting Holder") made within 15 days after the receipt of
any such notice (or 10 days if the Company states in such written notice or
gives telephonic notice to the relevant security holders, with written
confirmation to follow promptly thereafter, that (i) such registration will be
on Form S-3 and (ii) such shorter period of time is required because of a
planned filing date), which request shall specify the Registrable Notes
intended to be disposed of by such Requesting Holder and the intended method of
such distribution, and the minimum offering price per $1,000 principal amount
of Registrable Note at which the Holder is willing to sell its Registrable
Notes, the Company shall, subject to Section 8(b) hereof, include for
registration under the Securities Act all Registrable Notes of the Requesting
Holders; provided that,
i. with respect to a registration of Registrable
Notes, prior to the effective date of the
registration statement filed in connection with such
registration, promptly following receipt of
notification by the Company from the managing
underwriter of the price at which such securities are
to be sold, if applicable, the Company shall so
advise each Requesting Holder of such price, and if
such price is below the minimum price which any
Requesting Holder shall have indicated to be
acceptable to such Requesting Holder, such Requesting
Holder shall then have the right irrevocably to
withdraw its request to have its Registrable Notes
included in such registration statement, by delivery
of written notice of such withdrawal to the Company
within three Business Days of its being advised of
such price, without prejudice to the rights of any
Holder or Holders of Registrable Notes to include
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Registrable Notes in any future registration
(or registrations) pursuant to this Section 4; and
ii. with respect to a registration of Registrable
Notes, if at any time after giving written notice of
its intention to register any securities and prior to
the effective date of the registration statement
filed in connection with such registration, the
Company shall determine for any reason not to
register or to delay registration of such securities,
the Company may, at its election, give written notice
to such determination to each Requesting Holder and
(i) in the case of a determination not to register,
shall be relieved of its obligation to register any
Registrable Notes in connection with such
registration (but not from any obligation of the
Company to pay the Expenses in connection therewith),
without prejudice, however, to the rights of any
Holder to include Registrable Notes in any future
registration (or registrations) pursuant to this
Section 4 and (ii) in the case of a determination to
delay registering its securities, shall be permitted
to delay registering any Registrable Notes, for the
same period as the delay in registering such other
securities.
No registration effected under this Section 4 shall relieve the Company of its
obligations under Section 2 or 3 hereof.
5. Blackout Periods. With respect to a Shelf Registration filed or to
be filed pursuant to Section 2 hereof or a Demand Registration
requested under Section 3 hereof, if the Board of Directors of the Company
shall determine, in its good faith reasonable judgment, that to maintain the
effectiveness of such registration statement or to permit such registration
statement to become effective (or if no registration statement has yet been
filed, to file such registration statement) would be significantly
disadvantageous to the Company's financial condition, business or prospects ( a
"Disadvantageous Condition") in light of the existence, or in anticipation, of
(i) any acquisition of financing activity involving the Company, or any
subsidiary of the Company, including a proposed public offering or private
placement, (ii) an undisclosed material event, the public disclosure of which
could have a material adverse effect on the Company, (iii) a proposed material
transaction involving the Company or a substantial amount of its assets, or
(iv) any other circumstance or condition the disclosure of which would
materially disadvantage the Company, and the existence of which renders any to
be filed, then filed or effective registration statement inadequate as failing
to include material information, then the Company may, until such
Disadvantageous Condition no longer exists (but not with respect to more than
180 days in the aggregate nor involving more than 90 consecutive days during
any 12-month period) cause such registration statement to be withdrawn and the
effectiveness of such registration statement to be terminated, suspend the use
of the prospectus contained therein, or if no registration statement has yet
been filed, elect not to file such registration statement. If the Company
determines to take any action pursuant to the preceding sentence, the Company
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shall deliver a notice to any Holder of Registrable Notes covered or to be
covered under such withdrawn, suspended or not to be filed registration
statement, which indicates that the registration statement is no longer
effective or will not be filed. Upon the receipt of any such notice, such
Holder(s) in the case of an effective registration statement shall forthwith
discontinue their use and any dissemination of the prospectus contained in such
registration statement. If any Disadvantageous Condition shall cease to exist,
the Company shall promptly notify any Holders, who shall have ceased selling
Registrable Notes pursuant to an effective registration statement as a result of
such Disadvantageous Condition, indicating such cessation. The Company shall,
if any registration statement required to be filed or maintained under this
Agreement has been withdrawn, suspended or not filed, file promptly, at such
time as it in good xxxxx xxxxx appropriate, an amended, supplemented or new
registration statement, as applicable, covering the Registrable Notes that were
covered by such withdrawn registration statement or to be covered by such
unfiled registration statement.
6. Expenses. The Company shall pay all Expenses in connection
with any registration initiated pursuant to Section 2 or 3 hereof, whether or
not such registration shall become effective.
7. Registration Procedures. If and whenever the Company is
required to effect any registration under the Securities Act as provided in and
subject to the provisions of Sections 2 and 3 hereof, the Company shall, as
expeditiously as possible:
a. expeditiously prepare and file with the
Commission the requisite registration statement to
effect such registration and thereafter use its
reasonable best efforts to cause such registration
statement to become effective; provided, however,
that the Company may discontinue any registration of
its securities that are not Registrable Notes (and,
under the circumstances specified in Sections 4 and
7(b) hereof, its securities that are Registrable
Notes) at any time prior to the effective date of the
registration statement relating thereto;
b. prepare and file with the Commission such
amendments and supplements to such registration
statement and the prospectus used in connection
therewith as may be necessary to keep such
registration statement effective and to comply with
the provisions of the Securities Act with respect to
the offering of all Registrable Notes covered by such
registration statement until such time as all of such
Registrable Notes have been disposed of during the
applicable period in accordance with the method of
disposition set forth in such registration statement
or, with respect to a Shelf Registration, the
expiration of the Effectiveness Period;
c. furnish to each seller of Registrable Notes
covered by any registration statement provided for
hereunder such reasonable number of copies of such
drafts and final conformed versions of such
registration statement and of
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each such amendment and supplement thereto (in each
case including all exhibits), such reasonable number
of copies of such drafts and final versions of the
prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule
424 under the Securities Act, and such other
documents, as such seller may reasonably request in
writing;
d. use its best efforts (i) to file such applications and
documents to register or qualify all Registrable Notes
and other securities covered by such registration
statement under such other securities or blue sky laws
of such states or other jurisdictions of the United
States of America as the sellers of Registrable Notes
covered by such registration statement shall
reasonably request in writing, (ii) to keep such
registration or qualification in effect for so long as
such registration statement remains in effect and
(iii) to take any other action that may be reasonably
necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of
the securities to be sold by such sellers, except that
the Company shall not for any such purpose be required
to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not
but for the requirements of this subsection (d) be
obligated to be so qualified, to subject itself to
taxation in such jurisdiction or to consent to general
service of process in any such jurisdiction;
e. use its best efforts to cause all Registrable Notes
covered by such registration statement to be
registered with or approved by such other federal or
state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and
counsel to the seller or sellers of Registrable Notes
to enable the sellers thereof to consummate the
offering of such Registrable Notes;
f. use its best efforts to obtain and, if obtained,
furnish a copy to each seller of Registrable Notes,
and each such seller's underwriters, if any, of
i. an opinion of counsel for the Company,
dated the effective date of such
registration statement (and, if such
registration involves an underwritten
offering, dated the date of the
closing under the underwriting
agreement), reasonably satisfactory in
form and substance to counsel to the
Holders chosen by Holders of a
majority of the aggregate principal
amount of Registrable Notes being
registered, and
ii. a "comfort" letter, dated the
effective date of such registration
statement (and, if such registration
involves an underwritten offering,
dated the date of the closing under
the underwriting agreement) and
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signed by the independent public accountants
who have certified the Company's financial statements
included or incorporated by reference in such
registration statement, reasonably satisfactory in form
and substance to counsel to the Holders chosen by
Holders of a majority of the aggregate principal amount
of Registrable Notes being registered,
in each case, covering substantially the
same matters with respect to such registration
statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with
respect to events subsequent to the date of such
financial statements and matters contained in such
registration statement, as are customarily covered in
opinions of issuer's counsel and in accountants'
comfort letters delivered to underwriters in
underwritten Public Offerings of like securities;
g. notify the sellers of Registrable Notes
(providing, if requested by any such Persons,
confirmation in writing) as soon as practicable after
becoming aware of: (A) the filing of any prospectus or
prospectus supplement of the filing or effectiveness
(or anticipated date of effectiveness) of such
registration statement or any post- effective
amendment thereto; (B) any request by the Commission
for amendments or supplements to such registration
statement or the related prospectus or for additional
information; (C) the issuance by the Commission of any
stop order suspending the effectiveness of such
registration statement or the initiation of any
proceedings for such purpose; (D) the receipt by the
Company of any notification with respect to the
suspension of the qualification or registration (or
exemption therefrom) of any Registrable Notes for sale
in any jurisdiction in the United States or the
initiation or threatening of any proceeding for such
purposes; or (E) the happening of any event that makes
any statement made in such registration statement or in
any related prospectus, prospectus supplement,
amendment or document incorporated therein by reference
untrue in any material respect or that requires the
making of any changes in such registration statement or
in any such prospectus, supplement, amendment or other
such document so that it will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein (in the case
of any prospectus in the light of the circumstances
under which they were made) not misleading;
h. otherwise comply with all applicable
rules and regulations of the Commission and any other
governmental agency or authority having jurisdiction
over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings
statement covering the period of al least twelve
months, but not more than eighteen months, beginning
with the first full calendar month after the effective
date of such registration statement, which
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earnings statement shall satisfy the provisions of section
11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each seller of Registrable Notes at
least three Business Days prior to the filing thereof a copy of
any amendment or supplement to such registration statement or
prospectus;
i. obtain a CUSIP number for all Registrable Notes;
j. enter into customary agreements and take all such other
reasonable actions in connection therewith in order to
expedite or facilitate the disposition of the Registrable
Notes included in such registration statement;
k. make every reasonable effort to obtain the withdrawal of any
order or other action suspending the effectiveness of any such
registration statement or suspending the qualification or
registration (or exemption therefrom) of the Registrable Notes
for sale in any jurisdiction; and
l. if any event described in subsection (g) hereto occurs, use
its best efforts to cooperate with the Commission to prepare,
as soon as practicable, any amendment or supplement to such
registration statement or such related prospectus and any
other additional information, or to take other action that may
have been requested by the Commission.
It shall be a condition precedent to the obligations of the Company to
take action pursuant to this Agreement that the selling Holders
furnish to the Company such information regarding themselves and the
Registrable Notes held by them, and the intended methods of
disposition of such securities, as shall be required to effect the
registration and sale of their Registrable Notes.
In the case of a registration pursuant to this Agreement (including
any registration under Section 4 hereof), each Holder agrees that as
of the date that a final prospectus is made available to it for
distribution to prospective purchasers of Registrable Notes it shall
cease to distribute copies of any preliminary prospectus prepared in
connection with the offer and sale of such Registrable Notes. Each
Holder further agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
subsection (g) of this Section 7, such Holder shall forthwith
discontinue such Holder's disposition of Registrable Notes pursuant to
the registration statement relating to such Registrable Notes until
such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (l) of this Section 7 and, if so
directed by the Company, shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then
in such Holder's possession of the prospectus relating to such
Registrable Notes current at the time of receipt of such notice.
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8. Underwritten Offerings.
a. Requested Underwritten Offerings. If requested by the
underwriters (if any) in connection with a registration under
Section 2 or 3 hereof, the Company shall enter into a firm
commitment underwriting agreement with such underwriters for such
offering, such agreement to be reasonably satisfactory in substance
and form to the Company, Holders of a majority of the Registrable
Notes included in such registration, and the underwriters, and to
contain such representations and warranties by the Company and such
other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnification and contribution to
the effect and to the extent provided in Section 10 hereof.
b. Selection of Underwriters. The underwriter or underwriters of
each underwritten offering, if any, of the Registrable Notes to be
registered pursuant to Section 2, 3 or 4 hereof (i) shall be a
nationally recognized underwriter (or underwriters), (ii) shall be
selected by the Holders owning at least a majority of the aggregate
outstanding principal amount of Registrable Notes being sold in any
such underwritten offering and (iii) shall be reasonably acceptable
to the Company or, with respect to an offering of securities of
Parent pursuant to which Holders have piggyback rights, to Parent.
c. Piggyback Underwritten Offerings; Priority. If the Company or
Parent proposes to register any of its securities under the
Securities Act (whether pursuant to registration rights afforded to
holders of securities other than Registrable Notes or otherwise) and
the Holders exercise piggyback rights pursuant to Section 4 hereof
with respect to such registration and any such securities are to be
distributed by or through one or more underwriters, the Company
shall use reasonable efforts to arrange for such underwriters to
include all of the Registrable Notes to be offered and sold by the
Holders thereof among the securities of the Company to be
distributed by such underwriters; provided, that, notwithstanding
any other provision herein contained, if the managing underwriter of
such underwritten offering shall advise the Company or Parent in
writing (with a copy to the Holders) that the inclusion of the
Registrable Notes in such registration would materially and
adversely affect the success of such offering, then the number of
Registrable Notes to be included shall be reduced, pro rata among
the Registrable Notes holding such piggyback rights, to the extent
necessary to reduce the Registrable Notes to the number recommended
by the underwriter (which amount may be zero); provided, however,
that any such reduction in the number of Registrable Notes to be
included shall not take effect if the effect of such reduction would
be to allow holders of piggyback rights relating to other debt
securities of the Company to include any of their debt securities in
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any such offering; and provided further that, in the event that
any holders of equity securities holding piggyback rights with
respect to any registration have invoked such rights with respect to
a registration as to which the holders of Registrable Notes have
also requested inclusion pursuant to Section 4 hereof, and the
underwriter does not object to the inclusion of the Registrable
Notes on the basis of the character of such securities, but only on
the volume of securities to be included, any cutback of the
Registrable Notes shall be no less favorable to the Registrable
Notes than on a pro rata basis with any cutback of any such other
securities holding piggyback rights.
d. Holders of Registrable Notes to be Parties to
Underwriting Agreement. The Holders of Registrable Notes to be
distributed by underwriters in an underwritten offering contemplated
by subsections (a) or (b) of this Section 8 shall be parties to the
underwriting agreement between the Company and such underwriters and
any such Holder, at its option, may require that any or all of the
representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of the underwriters be
made to and for the benefit of such Holders and that any or all of
the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the
obligations of such Holders. No such Holder shall be required to
make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties
or agreements regarding such Holder, such Holder's Registrable Notes
and such Holder's intended method of distribution and
indemnification and contribution customary in secondary offerings to
the effect and to the extent provided in Section 10 hereof.
e. Selection of Underwriters for Piggyback Underwritten Offering.
The underwriter or underwriters of each piggyback underwritten
offering pursuant to this Section 8 shall be a nationally recognized
underwriter (or underwriters) selected by the Company or, if with
respect to an underwritten offering of securities of Parent, by
Parent.
9. Preparation; Reasonable Investigation.
a. Registration Statements. In connection with the preparation
and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company shall give each holder of
Registrable Notes registered under such registration statement, the
underwriters, if any, and its respective counsel and accountants the
reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed
with the Commission, and each amendment thereof or supplement
thereto, and shall give each of them such reasonable opportunities
to discuss the business of the Company with its officers and the
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independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of any
such Holders' and such underwriters' respective counsel, to conduct
a reasonable investigation within the meaning of the Securities Act.
b. Confidentiality. Each Holder of Registrable Notes shall
maintain the confidentiality of any confidential information
received from or otherwise made available by the Company to such
Holder of Registrable Notes pursuant to this Agreement and
identified in writing by the Company as confidential and shall enter
into such confidentiality agreements as the Company shall reasonably
request. Information that (i) is or becomes available to a Holder of
Registrable Notes from a public source, (ii) is disclosed to a
Holder of Registrable Notes by a third-party source whom the Holder
of Registrable Notes reasonably believes has the right to disclose
such information or (iii) is or becomes required to be disclosed by
a Holder of Registrable Notes by law, including, but not limited to,
administrative or court orders, shall not be deemed to be
confidential information for purposes of this Agreement; provided,
however, that to the extent sufficient time is available prior to
such disclosure being required to be made pursuant to clause (iii)
hereof, the Holders of Registrable Notes shall promptly notify the
Company of any request for disclosure and any proposed disclosure
pursuant to such clause (iii). The Holders of Registrable Notes
shall not grant access, and the Company shall not be required to
grant access, to information under this Section 9 to any Person who
will not agree to maintain the confidentiality (to the same extent a
Holder is required to maintain the confidentiality) of any
confidential information received from or otherwise made available
to it by the Company or the holders of Registrable Notes under this
Agreement and identified in writing by the Company as confidential.
10. Indemnification.
a. Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to this
Agreement, the Company shall, and hereby agrees to, indemnify and
hold harmless, each Holder of any Registrable Notes covered by such
registration statement and each other Person who participates as an
underwriter in the offering or sale of such securities and each
other Person, if any, who "controls" such Holder or any such
underwriter, and their respective directors, officers and partners
within the meaning of section 15 of the Securities Act and section
20 of the Exchange Act (each, a "Company Indemnitee" for purposes of
this Section 10(a)), against any losses, claims, damages,
liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof and whether or not such indemnified
party is a party thereto), joint or several, and expenses,
including, without limitation, the reasonable fees,
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disbursements and other charges of legal counsel and reasonable
out-of-pocket costs of investigation, to which such Company
Indemnitee may become subject under the Securities Act or otherwise
(collectively, a "Loss" or "Losses"), insofar as such Losses arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration
statement under which such securities were registered pursuant to
this Agreement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement
thereto (collectively, "Offering Documents"), or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the
light of the circumstances in which they were made not misleading;
provided that the Company shall not be liable in any such case to
the extent that any such Loss arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such Offering Documents in reliance upon and in
conformity with written information furnished to the Company
expressly for use therein; and provided, further, that the Company
shall not be liable to any Person including any Company Indemnitee
who participates in the offering or sale of Registrable Notes or any
other Person, if any, who controls such Person including any Company
Indemnitee, in any such case to the extent that any such Loss arises
out of such Person's failure to send or give a copy of the final
prospectus (including any documents incorporated by reference
therein), as the same may be then supplement or amended, to the
Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation
of the sale of Registrable Notes to such person if such statement or
omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnitee and
shall survive the transfer of such securities by such Company
Indemnitee.
b. Indemnification by the Offerors and Sellers. In connection with
any registration statement filed by the Company pursuant to this
Agreement in which a Holder has registered for sale Registrable
Notes, each such Holder of Registrable Notes shall, severally, but
not jointly, and hereby agrees to, indemnify and hold harmless the
Company, Parent, if with respect to a registration statement filed
by Parent, and each of its respective directors, officers, members
and partners, each other Person who participates as an underwriter
in the offering or sale of such securities, each other Person, if
any, who controls the Company, any such underwriter and such
underwriter's directors, officers, stockholders and partners (each a
"Holder Indemnitee" for purposes of this Section 10(b)), against all
Losses insofar as such Losses arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Offering Documents (or
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any document incorporated by reference therein) or any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the
light of circumstances in which they were made not misleading, if
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company expressly for use
therein; provided, however, that the liability of such indemnifying
party under this Section 10(b) shall be limited to the amount of the
net proceeds received by such indemnifying party in the offering
giving rise to such liability. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on
behalf of the Holder Indemnitee and shall survive the transfer of
such securities by such Holder.
c. Notices of Losses, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a Loss referred to in the preceding subsections
of this Section 10, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action;
provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section
10, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such
Loss, to assume and control the defense thereof, in each case at its
own expense, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from such
indemnifying party of its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any
settlement of any such action or proceeding effected without its
written consent, which shall not be unreasonably withheld. No
indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such Loss or which requires action
on the part of such indemnified party or otherwise subjects the
indemnified party to any obligation or restriction to which it would
not otherwise be subject.
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d. Contribution. If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified
party under subsection (a) or (b) of this Section 10 in respect of
any Loss, then, in lieu of the amount paid or payable under
subsection (a) or (b) of this Section 10, the indemnified party and
the indemnifying party under subsection (a) or (b) of this Section
10 shall contribute to the aggregate Losses (including legal or
other expenses reasonably incurred in connection with investigating
the same) (i) in such proportion as is appropriate to reflect the
relative fault of the Company and the prospective sellers of
Registrable Notes covered by the registration statement which
resulted in such Loss or action in respect thereof, as well as any
other relevant equitable considerations, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as shall be appropriate to reflect the relative
benefits received by the Company, on the one hand, and such
prospective sellers, on the other hand, from their sale of
Registrable Notes; provided that for purposes of this clause (ii),
the relative benefits received by the prospective sellers shall be
deemed not to exceed the amount received by such sellers. No Person
guilty of fraudulent misrepresentation (within the meaning of
section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligations, if any, of the selling holders
of Registrable Notes to contribute as provided in this subsection
(d) are several in proportion to the relative value of their
respective Registrable Notes covered by such registration statement
and not joint. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of
any action or Loss effected without such Person's consent.
e. Other Indemnification. The Company and, in connection with any
registration statement filed by the Company pursuant to Section 2,
each Holder shall, and, in connection with any registration
statement filed by the Company pursuant to Section 3 or 4, each
Holder who has registered for sale Registrable Notes, shall, with
respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act, indemnify
Holder Indemnitees and Company Indemnitiees, respectively, against
Losses, or, to the extent that indemnification shall be unavailable
to a Holder Indemnitee or Company Indemnitee in a manner similar to
that specified in the preceding subsections of this Section 10 (with
appropriate modifications).
f. Indemnification Payments. The indemnification and contribution
required by this Section 10 shall be made by periodic payments of
the amount thereof during the course of any investigation or
defense, as and when bills are received or any Loss is incurred.
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11. Registration Rights to Others.
If the Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the registration of such
securities under the Securities Act or the Exchange Act, such rights shall not
be in conflict with or adversely affect any of the rights provided in this
Agreement to the holders of Registrable Notes.
12. Adjustments Affecting Registrable Notes.
The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Registrable Notes that would materially
adversely affect the ability of the Holders to include such Registrable Notes
in any registration of its securities under the Securities Act contemplated by
this Agreement.
13. Rule 144 and Rule 144A.
The Company hereby agrees that (i) at any time it is not subject to
the requirements of section 13 or Section 15(d) of the Exchange Act and there
remain outstanding any Registrable Notes, (A) it shall make available to any
Holder upon written request such information as may be required under Rule
144(A)(d)(4) to permit resales of such Registrable Notes pursuant to Rule 144A
under the Securities Act and (B) it shall make publicly available such
information concerning the Company specified in paragraphs (a)(5)(i) through
and including (a)(5)(xiv) and in paragraph (a)(5)(xvi) of Rule 15c2-11 under
the Exchange Act to permit resales of such Registrable Notes pursuant to Rule
144 under the Securities Act; and (ii) during such times the Company is subject
to the requirements of section 13 or section 15(d) of the Exchange Act and
there remain outstanding any Registrable Notes, it shall timely file the
periodic and other reports referred to in paragraph (c)(1) of Rule 144 to
permit resales of such Registrable Notes pursuant to Rule 144 under the
Securities Act.
Without limiting the generality of the preceding paragraph, the
Company hereby agrees to take all such further actions as any Holder of
Registrable Notes reasonably may request, to the extent required to enable such
Holder to resell its Registrable Notes without registration under the
Securities Act within the limitation of the exemptions therefrom provided by
Rule 144A and Rule 144 under the Securities Act, as such Rules may be amended
from time to time, or any similar Rule or Regulation hereafter promulgated by
the Commission. Upon the reasonable request of any Holder of Registrable
Notes, the Company shall deliver to such Holder written notice as to whether it
has complied with such informational and other requirements.
14. Amendments and Waivers.
Except as otherwise provided herein, the provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the
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provisions hereof may not be given unless the Company shall have obtained the
prior written consent of the Holders of at least 66 2/3% of the aggregate
principal amount of Registrable Notes affected by such amendment, modification
or waiver.
15. Nominees for Beneficial Owners.
In the event that any Registrable Note is held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election in
writing delivered to Company, be treated as the Holder of such Registrable Note
for purposes of any request or other action by any Holder or Holders pursuant
to this Agreement or any determination of the number or percentage of principal
amount of Registrable Notes held by any Holder or Holders contemplated by this
Agreement. If the beneficial owner of any Registrable Notes so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Notes.
16. Assignment.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns including any successor-by-merger of the Company. Any Holder may
assign to any permitted transferee of its Registrable Notes holding Registrable
Notes its rights and obligation under this Agreement, provided that such
transferee shall agree in writing with the parties hereto prior to the
assignment to be bound by this Agreement as if it were an original party
hereto, whereupon such assignee shall for all purposes be deemed to be a Holder
under this Agreement.
17. Calculation of Percentage of Principal Amount of Registrable Notes.
For purposes of this Agreement, all references to an aggregate
principal amount of Registrable Notes or a percentage thereof shall be
calculated based upon the aggregate principal amount of Registrable Notes
outstanding at the time such calculation is made and shall exclude any
Registrable Notes or Notes, as the case may be, owned by the Company or any
subsidiary of the Company.
18. Miscellaneous.
a. Further Assurances. Each of the parties hereto shall execute
such documents and other papers and perform such further acts
as may be reasonably required or desirable to carry out the
provisions of this Agreement and the transactions contemplated
hereby.
b. Headings. The Headings in this Agreement are for convenience
of reference only and shall not control or affect the meaning
or construction of any provisions hereof.
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c. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to any of its securities
that contain provisions that conflict with the provisions
hereof in any material respect.
d. Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this
Agreement and the Company hereby agrees to waive the defense
in any action for specific performance that a remedy at law
would be adequate.
e. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect
of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties,
covenants, or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
undertakings between the parties hereto with respect to the
subject matter hereof.
f. Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing,
shall be delivered personally, by telecopy, by certified or
registered mail, postage prepaid, return receipt requested, or
by Federal Express or other comparable delivery service, to
the address of the party set forth on Schedule B hereto or to
such other address as the party to whom notice is to be given
may provide in a written notice to the other parties hereto, a
copy of which shall be on file with the Secretary of the
Company. Notice shall be effective when delivered if given
personally, when receipt is acknowledged if telecopied, three
days after mailing if given by registered or certified mail as
described above, and one business day after deposit if given
by Federal Express or comparable delivery service.
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 to be performed entirely in such
State, without regard to principles of conflicts of law. The
Company and the parties each hereby irrevocably submit to the
jurisdiction of any New York or any Federal Court sitting in
the City of New York in respect of any suit, action or
proceeding arising out of or relating to this Agreement, and
each irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of
the aforesaid courts. Nothing herein shall affect the right
of any party to serve process in any manner permitted by law
or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction.
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h. Severability. If one or more of the provisions contained
herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect, for any
reason, the validity, legality and enforceability of the
remaining provisions contained herein shall not be in any way
affected or impaired thereby, and the provision held to be
invalid, illegal or unenforceable shall be reformed to the
minimum extent necessary, and in a manner as consistent with
the purposes thereof as is practicable, so as to render it
valid, legal and enforceable, it being intended that all
rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
i. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the Company has executed this New PIK Notes
Registration Rights Agreement as of the date first above written.
PREMIUM STANDARD FARMS, INC.
By /s/ X.X. Xxxxxxxxx
-------------------------
Name:
Title:
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