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EXHIBIT 10.12
SECOND AMENDED AND RESTATED
REGISTRATION AGREEMENT
This Second Amended and Restated Registration Agreement (this "Agreement")
dated as of September 30, 1997, is among Intrepid Food Holdings, Inc., a
Delaware corporation (the "Corporation"), the individuals and entities
identified in Schedule 1 hereto (the "First Investors"), the individuals and
entities identified in Schedule 2 hereto (the "Second Investors;" the First
Investors and the Second Investors are collectively referred to herein as the
"Investors") and Xxxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx").
RECITALS
A. The Corporation and the Investors are parties to that certain Registration
Agreement, dated as of January 28, 1997 (the "Original Registration
Agreement").
B. The Corporation and the Investors deem it desirable to amend and restate
the Original Registration Agreement.
AGREEMENTS
In consideration of the premises and the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. In addition to the capitalized terms defined elsewhere in
this Agreement, the following capitalized terms shall have the following
meanings when used in this Agreement:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SHARES" means shares of Common Stock.
"COMMON STOCK" means the Common Stock of the Corporation.
"HOLDERS" means the holders of Registrable Shares who are parties to this
Agreement or successors or assigns or subsequent holders contemplated by
Section 13 hereof.
"MATELJAN OPTION AGREEMENT" means that certain Option Agreement dated as of
September 30, 1997 by and between the Corporation and Xxxxxx X. Xxxxxxxx, Xx.
"1995 PURCHASE AGREEMENT" means that certain Common Stock Purchase
Agreement, dated as of October 2, 1995, between the Corporation, Frontenac VI
Limited Partnership and Xxxxxxx X. Xxxx.
"PERSON" means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision thereof.
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"PREFERRED SHARES" means shares of the Series A Preferred Stock of the
Corporation.
"PURCHASE AGREEMENT" means that certain Stock Purchase Agreement, dated as
of April 15, 1996, between the Corporation and the First Investors.
"REGISTRABLE SHARES" means, at any time, (a) any shares of Common Stock
issued pursuant to (i) the 1995 Purchase Agreement, (ii) the Xxxx Option
Agreement, (iii) the Purchase Agreement, (iv) the Management Purchase
Agreement, (iv) the Second Purchase Agreement or (v) the Mateljan Option
Agreement, or (b) any shares of Common Stock issued as, or issued or issuable
directly or indirectly upon the conversion or exercise of other securities
issued as, a dividend or other distribution with respect to or in replacement
of such shares; provided, however, that Registrable Shares shall not include
any shares the sale of which has been registered pursuant to the Securities Act
or which have been sold to the public pursuant to Rule 144 of the Commission
under the Securities Act. For purposes of this Agreement, a Person will be
deemed to be a holder of Registrable Shares whenever such Person has the right
to acquire such Registrable Shares (by conversion, exercise or otherwise),
whether or not such acquisition has actually been effected.
"REGISTRATION" means any Long-Form Registration or Short-Form Registration.
"REGISTRATION EXPENSES" has the meaning ascribed to it in Section 6 of this
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SUBSIDIARY" means any Person of which securities or other ownership
interests representing more than fifty percent (50%) of the ordinary voting
power are, at the time as of which any determination is being made, owned or
controlled by the Corporation or one or more Subsidiaries of the Corporation or
by the Corporation and one or more Subsidiaries of the Corporation.
"XXXX OPTION AGREEMENT" means that certain Amended and Restated Management
Option Agreement dated January 28, 1997 by and between the Corporation and
Xxxxxxx X. Xxxx.
2. DEMAND REGISTRATIONS.
(A) REQUESTS FOR REGISTRATION. The Holder or Holders of at least
two-thirds of the Registrable Shares may request at any time registration under
the Securities Act of all or part of their Registrable Shares on Form S-1 or
S-2 or any similar long-form registration ("Long-Form Registration"), provided
that, in the case of any such Long-Form Registration, the aggregate offering
value of all Registrable Shares requested to be included in such registration
pursuant to this Section 2(a) must be reasonably expected to equal at least
$5,000,000. In addition, subject to Section 2(c), any Holder may request
registration under the Securities Act of all or part of such Holder's
Registrable Shares on Form S-3 or any similar short-form registration
("Short-Form Registration"), if available, provided that, in the case of any
such Short-Form Registration, the aggregate offering value of the Registrable
Shares requested to be included in such registration pursuant to this Section
2(a) must be reasonably expected to equal at least $1,000,000. Within ten days
after receipt of any request pursuant to this Section 2(a), the Corporation
will give written notice of such request to all other holders of Registrable
Shares and will include in such registration all Registrable Shares with
respect to which the Corporation has received
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written requests for inclusion therein within 21 days after the Corporation's
notice has been given. All registrations requested pursuant to this Section
2(a) are referred to herein as "Demand Registrations."
(B) LONG-FORM REGISTRATIONS. The Holder or Holders of at least two-thirds
of the Registrable Shares may request, subject to the minimum dollar amounts
with respect to such Registration set forth in Section 2(a), and the
Corporation will pay all Registration Expenses for, a maximum of two Long-Form
Registrations. A registration will not count as one of those two Long-Form
Registrations until it has become effective and will not count as one of those
two Long-Form Registrations unless the Holders of Registrable Shares requested
to be included in such a Long-Form Registration are able to register and sell
at least 75% of the Registrable Shares requested to be included in such
registration; provided, however, that in any event the Corporation will pay all
Registration Expenses in connection with any registration initiated as a
Long-Form Registration requested hereunder.
(C) SHORT-FORM REGISTRATIONS. In addition to the Long-Form Registrations
that may be requested pursuant to Section 2(a) and 2(b), any Holder of
Registrable Shares will be entitled to request, subject to the minimum dollar
amounts with respect to such Registration set forth in Section 2(a), an
unlimited number of Short-Form Registrations for which the Corporation will pay
all Registration Expenses, whether or not such registration becomes effective.
Once the Corporation has become subject to the reporting requirements of the
Securities Exchange Act, the Corporation will use its best efforts to make
Short-Form Registrations available for the sale of Registrable Shares. If the
Short-Form Registration is to be an underwritten public offering, and if the
underwriter for marketing or other reasons requests the inclusion in the
registration statement of information which is not required under the
Securities Act to be included in a registration statement on the applicable
form for the Short-Form Registration, the Corporation will provide such
information for inclusion by the underwriter in the Short-Form Registration.
(D) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is an
underwritten public offering and the managing underwriters advise the
Corporation in writing that in their opinion the inclusion of the number of
Registrable Shares and other securities requested to be included in such
offering creates a substantial risk that the price per share of Common Stock
will be reduced, the Corporation will include in such registration, prior to
the inclusion of any securities which are not Registrable Shares, the number of
Registrable Shares requested to be included which in the opinion of such
underwriters can be sold in such offering without creating such a risk, pro
rata among the respective Holders of Registrable Shares on the basis of the
number of Registrable Shares owned by such Holders, with further successive pro
rata allocations among the Holders of Registrable Shares if any such Holder of
Registrable Shares has requested the registration of less than all such
Registrable Shares it is entitled to register.
(E) RESTRICTIONS ON REGISTRATIONS. The Corporation will not be obligated
to effect any Registration within six months after the effective date of a
previous Registration. The Corporation may postpone for a reasonable period
not to exceed 120 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Board of Directors of the
Corporation determines reasonably and in good faith that such filing would
require a disclosure of a material fact that would have a material adverse
effect on the Corporation or any plan by the Corporation or any of its
Subsidiaries to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or other
significant transaction.
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3. PIGGYBACK REGISTRATIONS.
(A) RIGHT TO PIGGYBACK. Whenever securities of the Corporation are to be
registered under the Securities Act (other than pursuant to a Demand
Registration and other than pursuant to a registration statement on Form S-4 or
Form S-8) and the registration form to be used may be used for the registration
of Registrable Shares (a "Piggyback Registration"), the Corporation will give
prompt written notice (and in any event within five business days after its
receipt of notice of any exercise of demand registration rights by holders of
the Corporation's securities other than the Registrable Shares) to all Holders
of Registrable Shares of its intention to effect such a registration and will
include in such registration all Registrable Shares with respect to which the
Corporation has received written requests for inclusion therein within 21 days
after the Corporation's notice has been given.
(B) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the Corporation, and the
managing underwriters advise the Corporation in writing that in their opinion
the number of securities requested to be included in such offering in the
registration creates a substantial risk that the price per share of Common
Stock will be reduced, the Corporation will include in such registration (i)
first, the securities the Corporation proposes to sell, (ii) second, the
Registrable Shares requested to be included in such registration which in the
opinion of such underwriters can be sold in such offering without creating such
a risk, pro rata among the Holders of such Registrable Shares on the basis of
the number of Registrable Shares owned by such holders, with further successive
pro rata allocations among the Holders of Registrable Shares if any such holder
has requested the registration of less than all the Registrable Shares such
Person is entitled to register, and (iii) third, other securities requested to
be included in such registration.
(C) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the
Corporation's securities, and the managing underwriters advise the Corporation
in writing that in their opinion the inclusion of the number of securities
requested to be included in such offering creates a substantial risk that the
price per share of Common Stock will be reduced, the Corporation will include
in such registration the Registrable Shares requested to be included in such
registration and the securities requested to be included therein by the holders
of the Corporation's securities requesting such registration (all such
Registrable Shares and other securities requesting such registration being
collectively referred to as the "Secondary Shares") which in the opinion of
such underwriters can be sold in such offering without creating such a risk,
pro rata among the holders of such Secondary Shares on the basis of the number
of Secondary Shares owned or deemed to be owned by such holders, with further
successive pro rata allocations among the holders of Secondary Shares if any
such holder of Secondary Shares has requested the registration of less than all
such Secondary Shares such Person is entitled to register.
(D) OTHER REGISTRATIONS. If the Corporation has previously filed a
registration statement which includes Registrable Shares pursuant to Section 2
or pursuant to this Section 3, and if such previous registration has not been
withdrawn or abandoned, the Corporation will not file or cause to be effected
any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or Form S-8), whether on its own behalf
or at the request of any holder or holders of such securities, until a period
of 90 days has elapsed from the effective date of such previous registration.
(E) LIMITATIONS ON REGISTRATIONS. The Corporation shall not register any
of its securities for sale for its own account (other than securities issued to
employees of the Corporation under
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an employee benefit plan or securities issued to effect a business combination
pursuant to Rule 145 promulgated under the Securities Act and other than a
registration on Form S-3) except as a firm commitment underwriting.
4. HOLDBACK AGREEMENTS.
(A) Each of the Holders of Registrable Shares agrees not to effect any
public sale of equity securities of the Corporation, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 90-day period beginning on the effective date of
any underwritten Demand Registration or Piggyback Registration (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(B) The Corporation agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to a registration
on Form S-8), unless the underwriters managing the registered public offering
otherwise agree, (ii) to cause each holder of at least 1% (on a fully-diluted
basis) of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, purchased from the Corporation
at any time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale of any such securities during
such period (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering
otherwise agree and (iii) if requested by the underwriters managing the
registered public offering, to use its best efforts to cause each other holder
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, purchased from the Corporation at any time
(other than in a registered public offering) to agree not to effect any public
sale of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
(C) Nothing herein shall prevent a Holder that is a partnership from
making a distribution of Registrable Shares to its partners, a Holder that is a
trust from making a distribution of Registrable Shares to its beneficiaries or
a Holder that is a corporation from making a distribution of Registrable Shares
to its shareholders, provided that the transferees of such Registrable Shares
agree to be bound by the provisions of this Agreement to the extent the
transferor would be so bound.
5. REGISTRATION PROCEDURES. Whenever the Holders of Registrable Shares have
requested that any Registrable Shares be registered pursuant to the terms of
this Agreement, the Corporation will use its best efforts to effect the
registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Corporation
will as expeditiously as possible:
(A) prepare and file with the Commission a registration statement on the
appropriate form with respect to such Registrable Shares and use its best
efforts to cause such registration statement to become effective as soon as
practicable after such filing;
(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
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the disposition of all securities covered by such registration statement until
such time as the Registrable Shares registered thereunder have been disposed of
in accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement, but in no event for a period in
excess of nine months;
(C) furnish to each seller of such Registrable Shares and the underwriters
of the securities being registered such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such seller or underwriters may reasonably request in order
to facilitate the disposition of the Registrable Shares owned by such seller or
the sale of such securities by such underwriters;
(D) use its best efforts to register or qualify such Registrable Shares
under such other securities laws of such jurisdictions as any seller reasonably
requests and do any and all other acts and things which may be necessary or
desirable to enable such seller to consummate the public sale or other
disposition in such jurisdictions of the Registrable Shares owned by such
seller (provided, however, that the Corporation will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (ii) consent to
general service of process in any such jurisdiction);
(E) cause all such Registrable Shares to be listed on each securities
exchange on which similar securities issued by the Corporation are then listed,
or if no similar securities issued by the Corporation are then listed on a
securities exchange, a securities exchange (including The Nasdaq Market)
selected by the Corporation and reasonably acceptable to the Holder or Holders
of a majority of such Registrable Shares;
(F) provide a transfer agent and registrar for all such Registrable Shares
not later than the effective date of such registration statement;
(G) enter into such customary agreements (including underwriting
agreements) and take all such other actions as the Holder or Holders of a
majority of the Registrable Shares being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Shares (including, but not limited to, effecting a stock split or a
combination of shares);
(H) make available for inspection by each seller of such Registrable
Shares, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent designated
by any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Corporation, and cause the
Corporation's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(I) notify each seller of such Registrable Shares, promptly after it shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(J) notify each seller of such Registrable Shares of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
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(K) prepare and promptly file with the Commission and promptly notify each
seller of such Registrable Shares of the filing of such amendment or supplement
to such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
shall have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading;
(L) advise each seller of such Registrable Shares, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
by the Commission suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for such purpose and
promptly use all reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order should be issued;
(M) at least forty-eight hours prior to the filing of any registration
statement or prospectus or any amendment or supplement to such registration
statement or prospectus, furnish a copy thereof to each seller of such
Registrable Shares; and
(N) at the request of any seller of such Registrable Shares in connection
with an underwritten offering, furnish on the date or dates provided for in the
underwriting agreement: (i) an opinion of counsel, addressed to the
underwriters and the sellers of Registrable Shares, covering such matters as
such underwriters and sellers may reasonably request; and (ii) a letter or
letters from the independent certified public accountants of the Corporation
addressed to the underwriters and the sellers of such Registrable Shares,
covering such matters as such underwriters and sellers may reasonably request.
6. REGISTRATION EXPENSES.
(A) All expenses incident to the Corporation's performance of or
compliance with this Agreement, including, but not limited to, all registration
and filing fees, fees and expenses of compliance with federal, state and
foreign securities laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Corporation and its independent
certified public accountants, underwriters (excluding discounts and commissions
attributable to the Registrable Shares included in such registration) and other
Persons retained by the Corporation (all such expenses being herein called
"Registration Expenses"), will be borne by the Corporation. In addition, the
Corporation will pay its internal expenses (including, but not limited to, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance obtained by the Corporation and the expenses
and fees for listing the securities to be registered on each securities
exchange.
(B) In connection with any Registration in which Registrable Shares are
included, the Corporation will reimburse the Holders of Registrable Shares
covered by such registration for the reasonable cost and expenses incurred by
such holders in connection with such registration, including, but not limited
to, reasonable fees and disbursements of one counsel chosen by the Holders of a
majority of such Registrable Shares.
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7. INDEMNIFICATION.
(A) The Corporation agrees to indemnify, to the fullest extent permitted
by law, each seller of Registrable Shares, its officers and directors and each
Person who controls such seller (within the meaning of the Securities Act or
the Securities Exchange Act) against all losses, claims, damages, liabilities
and expenses (including, but not limited to, attorneys' fees except as limited
by Section 7(c)) caused by any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the
Corporation by such seller expressly for use therein or by such seller's
failure to deliver a copy of the prospectus or any amendments or supplements
thereto. In connection with an underwritten offering, the Corporation will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act or the
Securities Exchange Act) to the same extent as provided above with respect to
the indemnification of the sellers of Registrable Shares. The reimbursements
required by this Section 7(a) will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
(B) In connection with any registration statement in which a seller of
Registrable Shares is participating, each such seller will furnish to the
Corporation in writing such information and affidavits as the Corporation
reasonably requests for use in connection with any such registration statement
or prospectus and, to the fullest extent permitted by law, will indemnify the
Corporation, its directors and officers and each Person who controls the
Corporation (within the meaning of the Securities Act or the Securities
Exchange Act) against any losses, claims, damages, liabilities and expenses
(including, but not limited to, attorneys' fees except as limited by Section
7(c)) resulting from any untrue statement of a material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such seller; provided that
the obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and provided further that such
liability will be limited to, in any event, the net amount received by such
seller from the sale of Registrable Shares pursuant to such registration
statement.
(C) Any Person entitled to indemnification hereunder will (i) use
reasonable efforts to give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
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(D) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Corporation
also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event the Corporation's
indemnification is unavailable for any reason.
8. COMPLIANCE WITH RULE 144 AND RULE 144A. At any time and from time to time
after (a) the Corporation registers a class of securities under Section 12 of
the Securities Exchange Act, or (b) the expiration of 90 days following the
close of business on the earlier of such date as the Corporation commences to
file reports under Section 13 or Section 15(d) of the Securities Exchange Act,
then at the request of any Holder who proposes to sell securities in compliance
with Rule 144 promulgated by the Commission, the Corporation will (i) forthwith
furnish to such holder a written statement of compliance with the filing
requirements of the Commission as set forth in Rule 144 as such rule may be
amended from time to time and (ii) make available to the public and such
Holders such information as will enable such Holders to make sales pursuant to
Rule 144. Unless the Corporation is subject to Section 13 or Section 15(d) of
the Securities Exchange Act, the Corporation will provide to any Holder of
Registrable Shares and to any prospective purchaser of Registrable Shares under
Rule 144A promulgated by the Commission, the information described in Rule
144A(d)(4) promulgated by the Commission.
9. UNDERWRITTEN REGISTRATIONS. No Person may participate in any registration
hereunder which is underwritten unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements. The Corporation will have
the right to select the managing underwriters to administer any offering of the
Corporation's securities, subject to the prior approval of the Holders of a
majority of the Registrable Shares, which approval shall not be unreasonably
withheld.
10. ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Corporation will not take
any action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the Holders of Registrable Shares to
include such Registrable Shares in a registration undertaken pursuant to this
Agreement or which would adversely affect the marketability of such Registrable
Shares in any such registration (including, but not limited to, effecting a
stock split or a combination of shares).
11. REMEDIES. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
12. AMENDMENTS AND WAIVERS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended or waived at any time only by
the written agreement of the Corporation and the Holders of at least two-thirds
of the Registrable Shares. Any waiver, permit, consent or approval of any kind
or character on the part of any such holders of any provision or condition of
this Agreement must be made in writing and shall be effective only to the
extent specifically set forth in writing. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of Registrable
Securities and the Corporation. Each Holder acknowledges that by operation of
this paragraph the Holders of at least two-thirds of the Registrable
Securities, acting in conjunction with the Corporation, will have the right and
power to diminish or eliminate all rights pursuant to this Agreement.
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13. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of
any of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto, whether so expressed or not. In
addition and whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or holders
of Registrable Shares are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Shares who consents in writing to be bound by
this Agreement.
14. OTHER REGISTRATION RIGHTS. Except for the registration rights granted
hereunder, the Corporation will not grant to any Persons the right to request
the Corporation to register any equity securities of the Corporation, or any
securities convertible or exchangeable into or exercisable for such securities,
without the written consent of the Holders of a majority of the Registrable
Shares. The Corporation will not include in any Demand Registration any
securities which are not Registrable Shares without the written consent of the
Holder or Holders of a majority of the Registrable Shares to be included in
such registration.
15. FINAL AGREEMENT. This Agreement constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
16. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
17. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement.
18. NOTICES. Any notices required or permitted to be sent hereunder shall
be delivered personally or mailed, certified mail, return receipt requested, or
delivered by overnight courier service to the following addresses, or such
other addresses as shall be given by notice delivered hereunder, and shall be
deemed to have been given upon delivery, if delivered personally, three
business days after mailing, if mailed, or one business day after delivery to
the courier, if delivered by overnight courier service:
If to the initial Holders of the Registrable Shares, to the addresses set
forth on Schedule 1 and Schedule 2 hereto.
If to the Holders of Registrable Shares other than the initial Holders of the
Registrable Shares, to the addresses set forth on the stock record books of the
Corporation.
If to Mateljan, to the address set forth beneath his signature hereto.
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If to the Corporation, to:
Intrepid Food Holdings, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
19. GOVERNING LAW. The validity, meaning and effect of this Agreement shall
be determined in accordance with the laws of the State of Illinois applicable
to contracts made and to be performed in that state.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument. Each
party shall receive a duplicate original of the counterpart copy or copies
executed by it and the Corporation.
[Remainder of page intentionally left blank.
Signature page follows.]
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12
This Second Amended and Restated Registration Agreement was executed as
of the date first set forth above.
INTREPID FOOD HOLDINGS, INC.
By: /S/ Xxxxxxx X. Xxxx
-----------------------------
Its: President
----------------------------
FRONTENAC VI LIMITED PARTNERSHIP
By: Frontenac Company
Its: General Partner
By: /S/ X.X. XxXxxxx
-----------------------------
a partner
STATE OF WISCONSIN INVESTMENT
BOARD
By: /S/ Xxx Xxxxxxxxxxx
-----------------------------
Its: Portfolio manager
----------------------------
/S/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
/S/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
/S/ Chance Bahadur
--------------------------------
Chance Bahadur
/S/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx
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13
/S/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Address:
c/o Xxxx X. Xxxxxx, Esq.
Suite 1920
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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