Exhibit 4
REGISTRATION RIGHTS AGREEMENT
between
Seneca Foods Corporation
and
Friday Holdings, L.L.C.
Dated as of May 27, 2003
TABLE OF CONTENTS
Page
1.
Background...............................................................................................1
2. Registration Under Securities Act, etc...................................................................1
2.1 Registration on Request.........................................................................1
2.2 Incidental Registration.........................................................................3
2.3 Registration Procedures.........................................................................5
2.4 Underwritten Offerings..........................................................................8
2.5 Preparation; Reasonable Investigation...........................................................9
2.6 Limitations, Conditions and Qualifications to Obligations
under Registration Covenants....................................................................9
2.7 Indemnification.................................................................................9
3.
Definitions.............................................................................................12
4. Rule 144................................................................................................15
5. Amendments and Waivers..................................................................................15
6. Nominees for Beneficial Owners..........................................................................15
7. Notices.................................................................................................16
8. Assignment..............................................................................................16
9. Calculation of Percentage Interests in Registrable Securities...........................................16
10. No Inconsistent Agreements..............................................................................16
11. Remedies................................................................................................17
12. Severability............................................................................................17
13. Entire Agreement........................................................................................17
14. Headings................................................................................................17
15. Governing Law...........................................................................................17
16. Counterparts............................................................................................17
17. Termination.............................................................................................17
REGISTRATION RIGHTS AGREEMENT, dated as of May 27, 2003 between Seneca
Foods Corporation, a New York corporation (the "Company"), and Friday Holdings,
L.L.C., a Delaware limited liability company ("Friday").
The parties hereby agree as follows:
1.Background. The Company and Friday are among the
parties to the Purchase Agreement dated as of March 6, 2003
(the "Purchase Agreement"), pursuant to which Friday is
receiving on the date hereof 967,742 shares of Convertible
Preferred Stock Series 2003 of the Company (the "Shares").
2.Registration Under Securities Act, etc.
2.1 Registration on Request.
(a)......Request. At any time after January 1, 2004,
upon the written request of one or more holders (the
"Initiating Holders") of Registrable Securities holding at least 25% of the
Registrable Securities (assuming the conversion of the Shares into Class A
Common Stock) that the Company effect the registration under the Securities Act
of all or part of such Initiating Holders' Registrable Securities, the Company
promptly will give written notice of such requested registration to all
registered holders of Registrable Securities, and thereupon the Company will use
its best efforts to effect, at the earliest possible date, the registration
under the Securities Act, of
(i) the Registrable Securities which the
Company has been so requested to register by such
Initiating Holders, and
(ii) all other Registrable Securities which
the Company has been requested to register by the
holders thereof (such holders together with the Initiating Holders hereinafter
are referred to as the "Selling Holders") by written request given to the
Company within 30 days after the giving of such written notice by the Company,
all to the extent necessary to permit the disposition of the Registrable
Securities so to be registered.
(b)......Registration of Other Securities. Whenever
the Company shall effect a registration pursuant to
this Section 2.1, no securities other than Registrable Securities shall be
included among the securities covered by such registration unless the Selling
Holders of not less than 66-2/3% of all Registrable Securities (assuming the
conversion of the Shares into Class A Common Stock) to be covered by such
registration shall have consented in writing to the inclusion of such other
securities.
(c)......Registration Statement Form. Registrations
under this Section 2.1 shall be on such appropriate
registration form of the Commission as shall be reasonably selected by the
Company; provided that, upon the request of the Selling Holders, the Company
shall effect such registration pursuant to Rule 415 under the Securities Act.
(d)......Effective Registration Statement. A
registration requested pursuant to this Section 2.1 shall not
be deemed to have been effected (i) unless a registration statement with respect
thereto has become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement until such time as
all of such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (unless the failure to so dispose of such
Registrable Securities shall be caused solely by reason of a failure on the part
of the Selling Holders); provided, that such period, except with respect to a
registration pursuant to Rule 415 under the Act, need not exceed 135 days, (ii)
if, after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable solely to the
Selling Holders, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than solely by reason of a
failure on the part of the Selling Holders.
(e)......Selection of Underwriters. The underwriter
or underwriters of each underwritten offering of the
Registrable Securities so to be registered shall be selected by the Selling
Holders of more than 50% of the Registrable Securities (assuming the conversion
of the Shares into Class A Common Stock) to be included in such registration and
shall be reasonably acceptable to the Company.
(f)......Priority in Requested Registration. If the
managing underwriter of any underwritten offering shall
advise the Company (and the Company shall so advise each Selling Holder of
Registrable Securities requesting registration of such advice) that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering within a price range
acceptable to the Selling Holders of 66-2/3% of the Registrable Securities
(assuming the conversion of the Shares into Class A Common Stock) requested to
be included in such registration, the Company, except as provided in the
following sentence, will include in such registration, to the extent of the
number and type which the Company is so advised can be sold in such offering,
first, Registrable Securities requested to be included in such registration, pro
rata (based on the number of Registrable Securities held by each of the Selling
Holders) among the Selling Holders requesting such registration, second, all
securities proposed to be sold by the Company for its own account, and third,
any Third Party Securities requested to be included in such registration.
Notwithstanding the foregoing, if the total number of Registrable Securities
requested to be included in any registration cannot be included, holders of
Registrable Securities requesting registration thereof pursuant to Section 2.1,
representing not less than 50% of the Registrable Securities (assuming the
conversion of the Shares into Class Common Stock) with respect to which
registration has been requested, shall have the right to withdraw the request
for registration of all such Registrable Securities by giving written notice to
the Company within 20 days after receipt of the notice from the managing
underwriter described above by the Company and, in the event of such withdrawal,
such request for all Registrable Securities shall not be counted for purposes of
the requests for registration to which holders of Registrable Securities are
entitled pursuant to Section 2.1 hereof.
(g)......Limitations on Registration Requests.
Notwithstanding anything in this Section 2.1 to the
contrary, in no event will the Company be required to (i) effect more than two
(2) registrations under this Section 2.1, (ii) effect a registration pursuant to
this Section 2.1 within the six-month period occurring immediately subsequent to
the effectiveness (within the meaning of Section 2.1(d)) of a registration
statement filed pursuant to this Section 2.1, unless a majority of the
Disinterested Directors determines that effecting a second registration within
the six-month period would not have a material adverse effect on the market
price of the Common Stock, (iii) effect a registration with respect to any class
of Registrable Securities pursuant to Section 2.1 covering less than forty
percent (40%) of the Registrable Securities (assuming the conversion of the
Shares into Class A Common Stock), or (iv) all Registrable Securities can be
sold without restriction (including any restriction on volume or as to manner of
sale) pursuant to Rule 144 under the Securities Act.
(h)......Expenses. The Selling Holders will pay all
Registration Expenses in connection with any
registrations requested pursuant to this Section 2.1, allocated pro rata (based
on the number and type of Registrable Securities of each of the Selling Holders
included in the registration under this Section 2.1) and all other fees and
expenses, if any, incident to the Company's performance of or compliance with
Section 2.1 incurred by the Company (other than compensation of its employees
and other overhead costs); provided, however, that if a registration is
withdrawn under Section 2.6, then the Company will pay all expenses related to
such registration incident to its performance of or compliance with Section 2.1
(including all Registration Expenses); and provided further, that if a
registration under Section 2.1 includes any securities other than the
Registrable Securities, the Company will pay all expenses related to such
registration incident to its performance of or compliance with this Section 2.1
(including all Registration Expenses other than Fee Expenses) and the Selling
Holders will pay all Fee Expenses allocated pro rata (based on the number and
type of Registrable Securities of each of the Selling Holders included in the
registration under this Section 2.1).
2.2 Incidental Registration.
(a)......Right to Include Registrable Securities. If
the Company at any time proposes to register any of
its Common Stock or any other class of Registrable Securities or other
securities convertible into or exchangeable for shares of its Common Stock or
any other class of Registrable Securities under the Securities Act by
registration on any form other than Forms S-4 or S-8 (or any successor forms),
whether or not for sale for its own account, it will each such time give prompt
written notice to all registered holders of Registrable Securities of its
intention to do so and of such holders* rights under this Section 2.2. Upon the
written request of any such holder (a "Requesting Holder") made as promptly as
practicable and in any event within 30 days after the receipt of any such notice
from the Company (which request shall specify the Registrable Securities
intended to he disposed of by such Requesting Holder), the Company shall use its
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the Requesting Holders thereof; provided, that prior to the effective date of
the registration statement filed in connection with such registration,
immediately upon notification to the Company from the managing underwriter of
the price at which such securities are to be sold, if such price is below the
price which any Requesting Holder shall have indicated to be acceptable to such
Requesting Holder, the Company shall so advise such Requesting Holder of such
price, and such Requesting Holder shall then have the right to withdraw its
request to have its Registrable Securities included in such registration
statement; provided, further, however, that 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 of such determination to each Requesting Holder of Registrable Securities
and (x) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, without prejudice, however, to the rights of any holder or holders
of Registrable Securities entitled to do so to cause such registration to be
effected as a registration under Section 2.1, and (y) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering such
other securities. No registration effected under this Section 2.2 shall relieve
the Company of its obligation to effect any registration upon request under
Section 2.1.
(b)......Priority in Incidental Registrations. If the
managing underwriter of any underwritten offering
shall inform the Company by letter of its opinion that the number or type of
Registrable Securities and Third Party Securities requested to be included in
such registration would materially adversely affect such offering, and the
Company has so advised the Requesting Holders in writing, then the Company will
include in such registration, to the extent of the number and type which the
Company is so advised can be sold in (or during the time of) such offering,
first, all securities proposed by the Company to be sold for its own account,
second, such Registrable Securities requested to be included in such
registration pursuant to this Agreement, pro rata (based on the number of
Registrable Securities requested to be included therein by each Selling Holder)
among such Selling Holders and third, any Third Party Securities.
(c)......Expenses. The Company will pay all fees and
expenses incident to its performance of or compliance
with this Section 2.2 (other than Fee Expenses) and the Requesting Holders will
pay all Fee Expenses, allocated pro rata (based on the number and type of
Registrable Securities of each of the Requesting Holders included in the
registration under this Section 2.2); provided, however, that if any Registrable
Securities are withdrawn from a registration pursuant to Section 2.2(a) or (b),
then the Company shall pay all Fee Expenses related to such Registrable
Securities.
(d)......Pillsbury and Marks Registration.
Notwithstanding anything contained herein to the contrary, (i)
Friday shall have no rights to participate in any registration of the Company*s
securities occurring at the request of The Pillsbury Company or its successor in
interest, General Xxxxx Operations, Inc. ("Pillsbury") pursuant to the terms of
the Purchase and Registration Rights Agreement, dated as of March 15, 1996, as
amended, between the Company and Pillsbury or at the request of any of the
parties to the Registration Rights Agreement dated as of June 22, 1998 among the
Company, Xxxx Xxxxx Strategic Investments, L.P. and several of its affiliates
pursuant to the terms of such Agreement (collectively "Marks), and (ii) Friday's
rights under this Section 2.1 shall in all respects be subordinate to the rights
of Pillsbury and Marks under the agreements referred to in the previous clause
except as Marks, the Company and the Holders may otherwise agree.
2.3 Registration Procedures. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1 and 2.2, the Company will,
as expeditiously as possible:
(i)......prepare and (as promptly as practicable, but
in any event within 60 days after the request for
registration is given to the Company) file with the Commission the requisite
registration statement to effect such registration and thereafter use its best
efforts to cause such registration statement to become effective; provided,
however, that the Company may discontinue any registration of its securities
which are not Registrable Securities (and, under the circumstances specified in
Section 2.2(b), Registrable Securities) at any time prior to the effective date
of the registration statement relating thereto;
(ii).....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 in accordance with Section 2.1(d)(i)
hereof and to comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such registration
statement until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement; provided, that
except with respect to any such registration statement filed pursuant to Rule
415 under the Securities Act, such period need not exceed 135 days, and, for any
registration statement filed pursuant to such Rule 415, such period shall not
exceed two years.;
(iii)....furnish to each seller of Registrable
Securities covered by such registration statement, such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies 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, in conformity with the
requirements of the Securities Act, and such other documents, as such seller may
reasonably request;
(iv).....use commercially reasonable efforts (x) to
register or qualify all Registrable Securities and
other securities covered by such registration statement under such other
securities or blue sky laws of such States of the United States of America where
an exemption is not available and as the sellers of Registrable Securities
covered by such registration statement shall reasonably request, (y) to keep
such registration or qualification in effect for so long as such registration
statement remains in effect and (z) to take any other action which 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 subdivision (iv) be obligated to be
so qualified or to consent to general service of process in any such
jurisdiction;
(v)......use commercially reasonable efforts to cause
all Registrable Securities 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
reasonable opinion of counsel to the Company and counsel to the seller or
sellers of Registrable Securities to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi).....furnish at the effective date of such
registration statement to each seller of Registrable
Securities, and each such seller*s underwriters, if any, a signed counterpart
of:
(x) an opinion of counsel for the Company,
dated the effective date of such
registration statement and, if applicable,
the date of the closing under the
underwriting agreement, and
(y) a "comfort" letter signed by the
independent public accountants who have
certified the Company's financial statements
included or incorporated by reference in
such registration statement,
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, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the accountants'
comfort letter, such other financial matters, and, in the case of the legal
opinion, such other legal matters, as the underwriters may reasonably request;
(vii)....notify each seller of Registrable Securities
covered by such registration statement at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the Seller of
such Registrable Securities, such prospectus shall not include 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 in the
light of the circumstances under which they were made;
(viii)...otherwise use commercially reasonable
efforts to comply with all applicable rules and regulations
of the Commission and, if requested by any underwriter for the Holders, make
available to its security holders, as soon as reasonably practicable (but not
more than 18 months after the effective date of such registration statement), an
earnings statement covering the period of at least 12 months beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder;
(ix).....provide and cause to be maintained a
transfer agent and registrar (which, in each case, may be the
Company) for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration;
(x)......use commercially reasonable efforts to cause
all Registrable Securities covered by such
registration statement either (a) to be listed on any national securities
exchange on which Registrable Securities of the same class covered by such
registration statement are then listed or (b) to be approved for quotation on
the NASDAQ National Market or any other over the counter market on Registrable
Securities of the same class covered by any such registration statement are then
quoted, and, if no such Registrable Securities are so listed or quoted, either
(x) on any national securities exchange on which the Common Stock is then listed
or (y) approved for quotation on the NASDAQ National Market or any other over
the counter market on which the Common Stock is then quoted.
(xi).....cooperate and assist in any filings required
to be made with the NASD and in the performance of
any due diligence investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD.
The Company may require each seller of
Registrable Securities as to which any registration
is being effected to furnish the Company (i) such information regarding
such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing and (ii) if requested by
the Company, an executed custody agreement and power of attorney in form
and substance reasonably satisfactory to the Company with respect to the
Registrable Securities to be registered pursuant to this Agreement.
.........Each holder of Registrable Securities agrees
by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in subdivision (vii) of this Section 2.3, such holder will
forthwith discontinue such holder*s disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (vii) of this Section 2.3 and, if so
directed by the Company, will 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 Securities current at the time of
receipt of such notice.
.........If a registration statement filed pursuant
to Section 2.1(c) hereof is subject to Rule 415 under
the Securities Act, the Company shall use its best efforts to keep the
registration statement continuously effective until the earlier to occur of (i)
the time at which the Holders no longer own, beneficially or otherwise, any
Registrable Securities or (ii) the second anniversary of the effective date of
the registration statement (the "Registration Period"). The Company shall amend
the registration statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for the
registration statement or by the Securities Act or any rules or regulations
promulgated thereunder.
2.4 Underwritten Offerings.
(a)......Requested Underwritten Offerings. If
requested by the underwriters for any underwritten offering
by holders of Registrable Securities pursuant to a registration requested under
Section 2.1, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be in customary form and
reasonably satisfactory in substance and form to each such holder, the
underwriters and the Company. The holders of the Registrable Securities proposed
to be sold by such underwriters will reasonably cooperate with the Company in
the negotiation of the underwriting agreement. No holder of Registrable
Securities shall be required to make any representations or warranties to or
agreements with the Company other than representations, warranties or agreements
regarding such holder, such holder's Registrable Securities and such holder's
intended method of distribution or any other representations required by
applicable law.
(b)......Incidental Underwritten Offerings. If the
Company proposes to register any of its securities under
the Securities Act as contemplated by Section 2.2 and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any Requesting Holder of Registrable Securities, use its best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such Requesting Holder among the securities
of the Company to be distributed by such underwriters, subject to the provisions
of Section 2.2(b). Any such Requesting Holder of Registrable Securities shall
not 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 Requesting Holder, such Requesting Holder's
Registrable Securities and such Requesting Holders s intended method of
distribution or any other representations required by applicable law.
2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities to be registered under such registration statement, their
underwriters, if any, and their respective counsel the 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 will give each of them such reasonable access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such holders' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants. The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding 90 days) the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to Section 2.1 if the Company determines, in its reasonable judgment,
that such registration and offering would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company and promptly gives the holders of Registrable Securities requesting
registration thereof pursuant to Section 2.1 written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company shall
so postpone the filing of a registration statement, holders of Registrable
Securities requesting registration thereof pursuant to Section 2.1, representing
not less than 50% of the Registrable Securities (assuming the conversion of the
Shares into Class A Common Stock) with respect to which registration has been
requested, shall have the right to withdraw the request for registration by
giving written notice to the Company within 30 days after receipt of the notice
of postponement and, in the event of such withdrawal, such request shall not be
counted for purposes of the requests for registration to which holders of
Registrable Securities are entitled pursuant to Section 2.1 hereof.
2.7 Indemnification.
(a)......Indemnification by the Company. The Company
will, and hereby does, indemnify and hold harmless, in
the case of any registration statement filed pursuant to Section 2.1 or 2.2,
each seller of any Registrable Securities 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 seller or
any such underwriter within the meaning of the Securities Act or the Exchange
Act, and their respective directors, officers, partners, agents and affiliates,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or underwriter or any such director, officer, partner, agent,
affiliate or controlling person may become subject under the Securities Act or
otherwise, including, without limitation, the reasonable fees and expenses of
legal counsel, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any 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 the Company will reimburse such seller or
underwriter and each such director, officer, partner, agent, affiliate and
controlling Person for any reasonable legal or any other expenses incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, preliminary prospectus, final
prospectus or summary prospectus contained therein or any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made not
misleading in a prospectus or prospectus supplement, if such untrue statement or
omission is completely corrected in an amendment or supplement to such
prospectus or prospectus supplement, the seller of the Registrable Securities
has an obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or underwriter or any such director, officer, partner, agent, affiliate
or controlling person and shall survive the transfer of such securities by such
seller or underwriter.
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking reasonably satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
2.7(a)) the Company, and each director of the Company, each officer of the
Company and each other Person, if any, who participates as an underwriter in the
offering or sale of such securities and each other Person who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, with respect to any statement or alleged statement in or omission
or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such seller specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of 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 Company or any such director, officer or controlling
person and shall survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 2.7(a) or (b), 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 subdivisions of this Section 2.7, except to the extent that the
indemnifying party is actually and materially prejudiced by such failure to give
notice. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that any indemnified
party may, at its own expense, retain separate counsel to participate in such
defense. Notwithstanding the foregoing, in any action or proceeding in which
both the Company and an indemnified party is, or is reasonably likely to become,
a party, such indemnified party shall have the right to employ separate counsel
at the Company's expense and to control its own defense of such action or
proceeding if, in the opinion of counsel to such indemnified party, (a) there
are or may be legal defenses available to such indemnified party or to other
indemnified parties that are different from or additional to those available to
the Company or (b) any conflict or potential conflict exists between the Company
and such indemnified party that would make such separate representation
advisable; provided, however, that in no event shall the Company be required to
pay fees and expenses under this Section 2.7 for more than one firm of attorneys
representing the indemnified parties (together, if appropriate, with one firm of
local counsel per jurisdiction) in any one legal action or group of related
legal actions. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by this Section 2.7, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without the indemnifying party's
written consent if (i) such settlement is entered into more than thirty (30)
days after receipt by the indemnifying party of the aforesaid request, and (ii)
the indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the consent of the indemnified party, which
consent shall not be unreasonably withheld, 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 to such claim or litigation or which
requires action other than the payment of money by the indemnifying party.
(d) Contribution. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 2.7(a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under Section 2.7(a) or (b), the indemnified party
and the indemnifying party under Section 2.7(a) or (b) shall contribute to the
aggregate losses, claims, damages and liabilities (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 sellers or prospective sellers of Registrable Securities covered by the
registration statement which resulted in such loss, claim, damage or liability,
or action or proceeding in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action or
proceeding 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 and such sellers or
prospective sellers from the offering of the securities covered by such
registration statement, provided, that for purposes of this Section 2.7(d), the
amounts required to be contributed by the sellers or prospective sellers of
Registrable Securities shall not exceed the amount of proceeds received by such
sellers or prospective 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. Such sellers or prospective sellers' obligations to
contribute as provided in this Section 2.7(d) are several in proportion to the
relative value of their respective Registrable Securities covered by such
registration statement and not joint.
(e) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Class A Common Stock" means the Company's Class A common stock, par
value $0.25 per share.
"Common Stock" shall mean and include: (i) the Class A common stock,
par value $.25 per share, of the Company, (ii) the Class B common stock, par
value $.25 per share, of the Company, and (iii) each other class of capital
stock of the Company that does not have a preference over any other class of
capital stock of the Company as to dividends or upon liquidation, dissolution or
winding up of the Company and, in each case, shall include any other class of
capital stock of the Company into which such stock is reclassified or
reconstituted.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the board of directors of the
Company who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such superseding
Federal statute.
"Fee Expenses" means, with respect to any Registrable Securities
included in a registration, all registration and filing fees with the
Commission, all filing fees of the New York Stock Exchange, Inc., other national
securities exchanges or the National Association of Securities Dealers, Inc.,
and all filing fees to comply with securities or blue sky laws which relate
solely to such Registrable Securities.
"Initiating Holder" is defined in Section 2.1.
"NASD" means National Association of Securities Dealers, Inc.
"Person" means any individual, firm, corporation, partnership, limited
liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind and shall include any
successor (by merger or otherwise) of such entity.
"Pillsbury" is defined in Section 2.2(d).
"Purchase Agreement" is defined in Section 1.
"Registrable Securities" means (i) any Shares, (ii) any shares of
Common Stock issued upon conversion of the Shares, (iii) any other shares of
Common Stock or Voting Securities beneficially owned by Friday or any of its
Affiliates (whether owned on the date hereof or hereafter acquired) and (iv) any
securities of the Company issued or issuable with respect to any of the
securities described in clauses (i), (ii) or (iii) by way of a dividend or stock
split or in connection with a combination of shares, recapitalization,
reclassification, merger, consolidation, reconstitution or other reorganization
or otherwise. As to any particular Registrable Securities, once issued, such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) they shall have been sold
as permitted by Rule 144 (or any successor provision) under the Securities Act,
(c) they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration of such distribution under the Securities Act or (d) they shall
have ceased to be outstanding. All references to percentages of Registrable
Securities shall be calculated pursuant to Section 9.
"Registration Expenses" means with respect to any registration under
Section 2, all Fee Expenses with respect to Registrable Securities included in
such registration, all reasonable printing, messenger and delivery expenses
incurred in such registration, the reasonable fees and disbursements of counsel
for the Company and of its independent public accountants incurred in such
registration, including the reasonable expenses of "comfort" letters required by
or incident to such performance and compliance, any reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (excluding any underwriting discounts or commissions with respect to
the Registrable Securities) and the reasonable fees and expenses of one counsel
to the Selling Holders incurred in such registration (selected by Selling
Holders representing at least 50% of the Registrable Securities covered by such
registration)
"Requesting Holder" is defined in Section 2.2.
"Securities Act" means the Securities Act of 1933, as amended, or any
superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933, as amended, shall include a
reference to the comparable section, if any, of any such superseding Federal
statute.
"Selling Holder" is defined in Section 2.1.
"Shares" is defined in Section 1.
"Third Party Securities" means any securities included in a
registration statement requested under Section 2.1 or 2.2, other than (i)
Registrable Securities, and (ii) securities to be sold by the Company for its
own account.
"Voting Securities" means any securities of the Company entitled to
vote generally in the election of directors, or securities convertible into or
exercisable or exchangeable for such securities.
4. Rule 144. The Company shall take all actions reasonably necessary to
enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the provisions of
(a) Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the holder or holders of at least 66-2/3% of the Registrable
Securities affected by such amendment, action or omission to act. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound
by any consent authorized by this Section 5, whether or not such Registrable
Securities shall have been marked to indicate such consent. If the Securities
Act is amended or new regulations are adopted thereunder, to permit company
registration such that the Company would not be able to grant the holders of
Registrable Securities the right to register and resell their Registrable
Securities in the manner contemplated under this Agreement on the date of its
execution, then the parties hereto agree to negotiate in good faith to amend
this Agreement to grant such holders of Registrable Securities substantially
equivalent rights to those that were provided on the date of this Agreement.
6.Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at
its election in writing delivered to the Company, be treated
as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of
Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it
of such owner's beneficial ownership of such Registrable
Securities.
7.Notices. All notices, demands and other
communications provided for or permitted hereunder shall be
made in writing and shall be by registered or certified
first--class mail, return receipt requested, telecopier,
courier service or personal delivery:
(a) if to Friday, addressed to it in the manner set forth in
the Purchase Agreement, or at such other address as it shall have furnished to
the Company in writing in the manner set forth herein;
(b) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing in the
manner set forth herein, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner set forth
in the Purchase Agreement, or at such other address as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding in
the manner set forth herein.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when delivered
by a courier, if delivered by overnight courier service; three business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is acknowledged, if telecopied.
8.Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties
hereto and, with respect to the Company, its respective
successors and permitted assigns and, with respect to Friday,
any subsequent holder of any Registrable Securities, subject
to the provisions respecting the minimum amount of Registrable
Securities required in order to be entitled to certain rights,
or take certain actions, contained herein.
9.Calculation of Percentage Interests in Registrable
Securities. For purposes of this Agreement, all references to
a percentage of the Registrable Securities shall be calculated
based upon the number of Registrable Securities outstanding at
the time such calculation is made. If there is more than one
class of Registrable Securities, then each reference to a
percentage of the Registrable Securities shall mean a
percentage of each class of the Registrable Securities.
10..........................................................No
Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement. Without limiting the
generality of the foregoing, the Company will not hereafter
enter into any agreement with respect to its securities which
grants, or modify any existing agreement with respect to its
securities to grant, to the holder of its securities in
connection with an incidental registration of such securities
equal or higher priority to the rights granted to Friday under
Section 2.
11...................................................Remedies.
Each holder of Registrable Securities, 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 without being required to
post bond. 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 hereby
agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
12...............................................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 contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and
privileges of Friday shall be enforceable to the fullest
extent permitted by law.
13.....................................................Entire
Agreement. This Agreement, together with the Purchase
Agreement (including the exhibits and schedules thereto), is
intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein
and therein. This Agreement and the Purchase Agreement
(including the exhibits and schedules thereto) supersede all
prior agreements and understandings between the parties with
respect to such subject matter.
14..................................................Headings.
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the
meaning hereof.
15..................Governing Law. This Agreement has
been negotiated, executed and delivered in the State of New
York and shall be governed by and construed in accordance with
the laws of the State of New York, without regard to
principles of conflicts of law.
16...............................................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 an original and all of
which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective representatives hereunto duly
authorized as of the date first above written.
SENECA FOODS CORPORATION
By: /s/Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
FRIDAY HOLDINGS, L.L.C.
By: /s/Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Secretary
689860.3
