EXHIBIT 4.11
Execution Copy
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated December 23, 2003 (the
"Agreement") is entered into by and among Land O'Lakes, Inc., a Minnesota
cooperative corporation (the "Company"), the entities listed in Schedule 1
hereto (the "Subsidiary Guarantors"), and X.X. Xxxxxx Securities Inc. (the
"Initial Purchaser").
The Company, the Subsidiary Guarantors and the Initial Purchaser are
parties to the Purchase Agreement dated December 12, 2003 (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial Purchaser
of $175,000,000 aggregate principal amount of the Company's 9% Senior Secured
Notes due 2010 (the "Securities") which will be fully and unconditionally
guaranteed on a senior secured basis by each of the Subsidiary Guarantors. As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company and the Subsidiary Guarantors have agreed to provide to the Initial
Purchaser and its direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Subsidiary Guarantors of Exchange Securities for Registrable Securities pursuant
to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the
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Prospectus contained therein, all exhibits thereto and any document incorporated
by reference therein.
"Exchange Securities" shall mean senior secured notes issued by the
Company and guaranteed by the Subsidiary Guarantors under the Indenture
containing terms identical to the Securities (except that the Exchange
Securities will not be subject to restrictions on transfer or to any increase in
annual interest rate for failure to comply with this Agreement) and to be
offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"Subsidiary Guarantors" shall have the meaning set forth in the
preamble and shall also include any Subsidiary Guarantor's successors.
"Holders" shall mean the Initial Purchaser, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchaser" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of December 23, 2003 among the Company, the Subsidiary Guarantors and U.S.
Bank National Association, as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of the outstanding Registrable Securities; provided
that whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Company shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount; provided, further, that if the Company shall issue any
additional Securities under the Indenture prior to consummation of the Exchange
Offer or the effectiveness of any Shelf Registration Statement, such additional
Securities and the Registrable Securities to which this Agreement relates shall
be treated together as one class for purposes of determining whether the consent
or approval of Holders of a specified percentage of Registrable Securities has
been obtained.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities upon the earlier to occur of
(i) when a Registration Statement with respect to such Securities has been
declared effective under the Securities Act and such Securities have been
exchanged or disposed of pursuant to such Registration Statement, (ii) when such
Securities have been sold pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or (iii) ( when such
Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Subsidiary Guarantors with
this Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees
and disbursements of counsel for the Company and the Subsidiary Guarantors and,
in the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchaser) and (viii) the
fees and disbursements of the independent public accountants of the Company and
the Subsidiary Guarantors, including the expenses of any special audits or
"comfort" letters required by or incident to such performance and compliance,
but excluding fees and expenses of counsel to the underwriters (other than fees
and expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Subsidiary Guarantors that covers any of the Exchange Securities
or Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantors that covers all the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Trust Indenture Act" shall have the meaning set forth in Section 3(i)
hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the Securities Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretations of the Staff of the SEC, the Company and the
Subsidiary Guarantors shall use their reasonable best efforts to (i) cause to be
filed an Exchange Offer Registration Statement covering an offer to the Holders
to exchange all the Registrable Securities for Exchange Securities and (ii) have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company and the Subsidiary Guarantors shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and use their reasonable best efforts to complete the
Exchange Offer within 225 days after issuance. The Company and the Subsidiary
Guarantors shall commence the Exchange Offer by mailing the related exchange
offer Prospectus and accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Registrable Securities validly tendered
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be
a period of at least 20 business days from the date such notice is
mailed) (the "Exchange Dates");
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(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest but will not retain
any rights under this Agreement;
(iv) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last Exchange
Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
its election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company and
the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or
portions thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company and issue, and cause the Trustee to
promptly authenticate and deliver to each Holder, Exchange Securities
equal in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Company and the Subsidiary Guarantors shall use their reasonable
best efforts to complete the Exchange Offer as provided above and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC. The Company shall inform the Initial Purchaser of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchaser shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
(b) In the event that (i) the Company and the Subsidiary
Guarantors determine that the Exchange Offer Registration provided for in
Section 2(a) above is not available or may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable
law or applicable interpretations of the Staff of the SEC, (ii) the Exchange
Offer is not for any other reason completed by 225 days after the
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Closing Date or (iii) the Exchange Offer has been completed and in the
reasonable opinion of counsel for the Initial Purchaser a Registration Statement
must be filed and a Prospectus must be delivered by the Initial Purchaser in
connection with any offering or sale of Registrable Securities, the Company and
the Subsidiary Guarantors shall use their reasonable best efforts to cause to be
filed as soon as practicable after such determination, date or notice of such
opinion of counsel is given to the Company, as the case may be, a Shelf
Registration Statement providing for the sale of all the Registrable Securities
by the Holders thereof and to have such Shelf Registration Statement declared
effective by the SEC.
In the event that the Company and the Subsidiary Guarantors are
required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence, the Company and
the Subsidiary Guarantors shall use their reasonable best efforts to file and
have declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchaser after completion of the
Exchange Offer. The Company and the Subsidiary Guarantors agree to use their
reasonable best efforts to keep the Shelf Registration Statement continuously
effective until the earlier of the expiration of the holding period referred to
in Rule 144(k) under the Securities Act with respect to the Registrable
Securities and such shorter period that will terminate when all the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement. Subject to the other provisions herein set
forth, the Company and the Subsidiary Guarantors further agree to supplement or
amend the Shelf Registration Statement and the related Prospectus if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable. The
Company and the Subsidiary Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided that if, after it has been declared effective,
the offering of Registrable Securities pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other
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order or requirement of the SEC or any court or other governmental or regulatory
agency or body, such Registration Statement will not be deemed effective during
the period of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
As provided in the Indenture, in the event that either the Exchange
Offer is not completed or the Shelf Registration Statement, if required hereby,
is not declared effective on or prior to the 225th day following the Closing
Date, then from such date, the interest rate on the Securities will be increased
by 0.25% per annum with an additional 0.25% per annum increase each 90 days
thereafter, up to a maximum increase of 1.00% per annum until the Exchange Offer
is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act.
In the event that the Shelf Registration Statement, if required hereby,
has been declared effective and such Shelf Registration Statement ceases to be
effective at any time during the period during which such Shelf Registration
Statement is required to be effective pursuant to Section 2(b) hereof, the
interest rate on the Securities will be increased by 0.25% per annum with an
additional 0.25% per annum increase each 90 days thereafter, up to a maximum
increase of 1.00% per annum, commencing on the day after such Shelf Registration
Statement ceases to be effective until the Shelf Registration Statement (as
amended or supplemented, if necessary) again becomes effective. For the purposes
of this paragraph, each period during which such Shelf Registration Statement is
required to be effective and is not effective shall be added to all such prior
periods in the previous consecutive twelve months in order to determine the
interest rate on the Securities.
(e) Without limiting the remedies available to the Initial
Purchaser and the Holders, the Company and the Subsidiary Guarantors acknowledge
that any failure by the Company or the Subsidiary Guarantors to comply with
their obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Subsidiary Guarantors' obligations
under Section 2(a) and Section 2(b) hereof (it being understood that any damages
recovered shall not include damages beyond those described in this Section (e)
and Section 2(d)).
3. Registration Procedures.
In connection with their obligations pursuant to Section 2(a) and
Section 2(b) hereof, the Company and the Subsidiary Guarantors shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Subsidiary Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (z) shall comply as to
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form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and
use their reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period and cause
each Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
keep each Prospectus current during the period described in Section 4(3) of and
Rule 174 under the Securities Act that is applicable to transactions by brokers
or dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchaser, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in order
to facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Subsidiary Guarantors consent to the use of
such Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities and any
such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any
Subsidiary Guarantor shall be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) take any action that would
subject it to service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchaser promptly and, if requested by any such Holder or counsel, confirm such
advice in writing (i) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes effective,
(ii) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement and
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Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company or any Subsidiary Guarantor contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to an offering of such Registrable Securities cease to be true
and correct in all material respects or if the Company or any Subsidiary
Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the happening of any event
during the period a Shelf Registration Statement is effective that makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading and (vi) of any determination by the Company or any Subsidiary
Guarantor that a post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide reasonably prompt notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
document incorporated therein by reference or exhibits thereto, unless requested
in writing by any such holder);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities to be
in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one business day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use their reasonable best
efforts, subject to Section 3(o) herein, to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company and the Subsidiary Guarantors shall notify
the Holders of Registrable Securities to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and such Holders
hereby agree to
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suspend use of the Prospectus until the Company and the Subsidiary Guarantors
have amended or supplemented the Prospectus to correct such misstatement or
omission or until the Company and the Subsidiary Guarantors notify the Holders
that the Prospectus may once again be used;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchaser and its counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and, in
the event that the Initial Purchaser is participating in the Exchange Offer, the
Company shall use its reasonable best efforts to reflect in each such document,
when so filed, such comments as the Initial Purchaser reasonably may propose
(and in the case of a Shelf Registration Statement, as the participating Holders
of Registrable Securities reasonably may propose) and make such of the
representatives of the Company and the Subsidiary Guarantors as shall be
reasonably requested by the Initial Purchaser or its counsel (and, in the case
of a Shelf Registration Statement, the participating Holders of Registrable
Securities or their counsel) available for discussion of such document; and the
Company and the Subsidiary Guarantors shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus or any document that is
to be incorporated by reference into a Registration Statement or a Prospectus,
of which the Initial Purchaser and its counsel (and, in the case of a Shelf
Registration Statement, the participating Holders of Registrable Securities and
their counsel) shall not have previously been advised and furnished a copy or to
which the Initial Purchaser or its counsel (and, in the case of a Shelf
Registration Statement, the participating Holders or their counsel) shall
object;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), in connection with the
registration of the Exchange Securities or Registrable Securities, as the case
may be; cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and execute, and use their reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Company and
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the Subsidiary Guarantors, and cause the respective officers, directors and
employees of the Company and the Subsidiary Guarantors to supply all information
reasonably requested by any such representative, Underwriter, attorney or
accountant in connection with a Shelf Registration Statement;
(n) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement or required by law, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably requests to be
included therein and make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received notification
of the matters to be incorporated in such filing; and
(o) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Company and the
Subsidiary Guarantors (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "comfort" letters from the
independent certified public accountants of the Company and the Subsidiary
Guarantors (and, if necessary, any other certified public accountant of any
subsidiary of the Company or any Subsidiary Guarantor, or of any business
acquired by the Company or any Subsidiary Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Subsidiary Guarantors made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company and the Subsidiary Guarantors may from
time to time reasonably request in writing, and the Company may exclude from
such registration the Registrable
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Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Subsidiary Guarantors of the happening of any event of the kind
described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or of notice from the Company and the
Subsidiary Guarantors that the Prospectus may once again be used and, if so
directed by the Company and the Subsidiary Guarantors, such Holder will deliver
to the Company and the Subsidiary Guarantors all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice.
If the Company and the Subsidiary Guarantors shall give any such notice
to suspend the disposition of Registrable Securities pursuant to a Registration
Statement, the Company and the Subsidiary Guarantors shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions. Notwithstanding the foregoing, the Company and the
Subsidiary Guarantors shall not be required to amend or supplement a Shelf
Registration Statement, any related Prospectus or any document incorporated
therein by reference, in the event that, and for a period not to exceed an
aggregate of 60 days in any calendar year if, (i) an event occurs and is
continuing as a result of which a Shelf Registration would, in the Company's
good faith judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and
(ii)(a) the Company determines in its good faith judgment that the disclosure of
such event as such time would have a material adverse effect on the business
operations of the Company or (b) the disclosure otherwise relates to a pending
material business transaction that has not yet been publicly disclosed.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer") may be deemed to be an "underwriter" within the
meaning of the Securities Act and must deliver a prospectus
13
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Securities.
The Company and the Subsidiary Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company and the Subsidiary Guarantors agree that the
provisions of this Agreement as they relate to a Shelf Registration shall also
apply to an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be reasonably requested by the Initial Purchaser or
by one or more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of the
Staff recited in Section 4(a) above; provided that:
(i) the Company and the Subsidiary Guarantors shall not
be required to amend or supplement the Prospectus contained in the
Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period exceeding 180 days after the
last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company and the
Subsidiary Guarantors to deliver and shall not deliver such Prospectus
after such period in connection with the resales contemplated by this
Section 4; and
(ii) the application of the Shelf Registration procedures
set forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the Staff
of the SEC or the Securities Act and the rules and regulations
thereunder, will be in conformity with the reasonable request to the
Company by the Initial Purchaser or with the reasonable request in
writing to the Company by one or more broker-dealers who certify to the
Initial Purchaser and the Company in writing that they anticipate that
they will be Participating Broker-Dealers; and provided, further, that
in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration,
the Company and the Subsidiary Guarantors shall be obligated (x) to
deal only with one entity representing the Participating
Broker-Dealers, which shall be X.X. Xxxxxx Securities Inc. unless it
elects not to act as such representative, (y) to pay the fees and
expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchaser unless
such counsel elects not to so act and (z) to cause to be delivered only
one, if any, "comfort" letter with respect to the Prospectus in the
form existing on the
14
last Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
(c) The Initial Purchaser shall have no liability to the Company,
any Subsidiary Guarantor or any Holder with respect to any request that it may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and each Subsidiary Guarantor, jointly and
severally, agree to indemnify and hold harmless the Initial Purchaser and each
Holder, their respective affiliates and each Person, if any, who controls the
Initial Purchaser or any Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted), joint or several, caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to the Initial Purchaser or any Holder
furnished to the Company in writing through X.X. Xxxxxx Securities Inc. or any
selling Holder expressly for use therein; provided, however, that with respect
to any such untrue statement or alleged untrue statement in or omission from or
alleged omission from any preliminary prospectus, the indemnity agreement
contained in this Section 5(a) shall not inure to the benefit of any Holder from
whom the Person asserting any such loss, claim, damage, liability or action
received Securities or Exchange Securities to the extent such loss, claim,
damage, liability or action results from the fact that both (A) a copy of the
final prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities or Exchange Securities to such
person and (B) the untrue statement or alleged untrue statement in or omission
from or alleged omission from the preliminary prospectus was corrected in the
final prospectus unless, in either case, such failure to deliver the final
prospectus was a result of non-compliance by the Company with Section 3(c) or
(g). In connection with any Underwritten Offering permitted by Section 3, the
Company and the Subsidiary Guarantors will also indemnify the Holders, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Subsidiary Guarantors, the Initial Purchaser
and the other selling Holders, their respective affiliates, the directors of the
Company and the Subsidiary Guarantors, each officer of the Company and the
Subsidiary Guarantors who
15
signed the Registration Statement and each Person, if any, who controls the
Company, the Subsidiary Guarantors, the Initial Purchaser and any other selling
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify in writing the Person against whom such indemnification may be
sought (the "Indemnifying Person"); provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for the Initial Purchaser, its affiliates
and any control Persons of the Initial Purchaser shall be designated in writing
by X.X. Xxxxxx Securities Inc., (y) for any Holder, its affiliates and any
control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person
16
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and (ii) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Subsidiary Guarantors from the offering
of the Securities, on the one hand, and by the Holders from receiving Securities
or Exchange Securities registered under the Securities Act, on the other hand,
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Subsidiary Guarantors on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Subsidiary Guarantors
on the one hand and the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Subsidiary Guarantors or
by the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Subsidiary Guarantors and the Holders agree
that it would not be just and equitable if contribution pursuant to this Section
5 were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
17
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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.
(f) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchaser, any Holder or any Person controlling the Initial
Purchaser or any Holder, or by or on behalf of the Company, the Subsidiary
Guarantors or the officers or directors of or any Person controlling the Company
or the Subsidiary Guarantors, (iii) acceptance of any of the Exchange Securities
and (iv) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Subsidiary
Guarantors represent, warrant and agree that (i) the rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Subsidiary Guarantor under any other agreement
and (ii) neither the Company nor any Subsidiary Guarantor has entered into, or
on or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Subsidiary Guarantors have obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or consent; provided that no amendment,
modification, supplement, waiver or consent to any departure from the provisions
of Section 5 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most
18
current address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 6(c), which address initially
is, with respect to the Initial Purchaser, the address set forth in the Purchase
Agreement; and (ii) if to the Company and the Subsidiary Guarantors, initially
at the Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c). All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchaser (in its capacity as Initial Purchaser) shall have no liability or
obligation to the Company or the Subsidiary Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. Until the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration Statement, as
the case may be, the Company and the Subsidiary Guarantors will not, and will
not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to, resell any of the Securities that have been acquired by any of them,
except for Securities purchased by the Company or any of its affiliates and
resold in a transaction registered under the Securities Act.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Subsidiary Guarantors, on the one hand, and the Initial Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
19
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York without regard to conflicts of law principles.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LAND O'LAKES, INC.,
by ______________________________
Name:
Title:
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ACS STORES, LLC,
by ______________________________
Name:
Title:
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ADVANCED BUSINESS CONCEPTS
INTERNATIONAL, LLC,
by ______________________________
Name:
Title:
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AG2AG, LLC,
by ______________________________
Name:
Title:
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AGRICULTURAL INDEMNITY
INSURANCE COMPANY,
by ______________________________
Name:
Title:
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIANCE MILK PRODUCTS, LLC,
by ______________________________
Name:
Title:
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICA'S COUNTRY STORES
HOLDINGS, LLC,
by ______________________________
Name:
Title:
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICA'S COUNTRY STORES, LLC,
by ______________________________
Name:
Title:
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DIAMOND CROSS, LLC,
by ______________________________
Name:
Title:
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FMR, INC.,
by ______________________________
Name:
Title:
30
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FORAGE GENETICS, INC.,
by ______________________________
Name:
Title:
31
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOLDEN STATE FEEDS, LLC,
by ______________________________
Name:
Title:
32
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOLDEN VALLEY DAIRY PRODUCTS,
by ______________________________
Name:
Title:
33
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
L.L. OLDS SEED COMPANY,
by ______________________________
Name:
Title:
34
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LAND O'LAKES FARMLAND FEED LLC,
by ______________________________
Name:
Title:
35
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LAND O'LAKES HOLDINGS, INC.,
by ______________________________
Name:
Title:
36
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LAND 0'LAKES INTERNATIONAL
DEVELOPMENT CORPORATION,
by ______________________________
Name:
Title:
37
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LOL HOLDINGS II, INC.,
by ______________________________
Name:
Title:
38
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LOL POWER, LLC,
by ______________________________
Name:
Title:
39
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MILK PRODUCTS, LLC,
by ______________________________
Name:
Title:
40
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NORTH COAST FERTILIZER II, INC.,
by ______________________________
Name:
Title:
41
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NORTHWEST FOOD PRODUCTS COMPANY,
INC.,
by ______________________________
Name:
Title:
42
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NORTHWEST FOOD PRODUCTS
TRANSPORTATION, LLC,
by ______________________________
Name:
Title:
43
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NUTRA-BLEND, LLC,
by ______________________________
Name:
Title:
44
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PMI NUTRITION, LLC,
by ______________________________
Name:
Title:
45
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PMI AGRICULTURE, L.L.C.,
by ______________________________
Name:
Title:
46
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PMI NUTRITION INTERNATIONAL, LLC,
by ______________________________
Name:
Title:
47
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PURINA XXXXX, LLC,
by ______________________________
Name:
Title:
48
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
QC, INC.,
by ______________________________
Name:
Title:
49
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
QC HOLDINGS INC.,
by ______________________________
Name:
Title:
50
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
QC INDUSTRIES, INC.,
by ______________________________
Name:
Title:
51
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
REALTY LOL, INC.,
by ______________________________
Name:
Title:
52
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RESEARCH SEEDS, INC.,
by ______________________________
Name:
Title:
53
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SEED RESEARCH, INC.,
by ______________________________
Name:
Title:
54
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX PRODUCTS, LLC,
by ______________________________
Name:
Title:
55
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
by _________________________
Authorized Signatory
Schedule 1
Subsidiary Guarantors
ACS Stores, LLC
Advanced Business Concepts International, LLC
AG2AG, LLC
Agricultural Indemnity Insurance Company
Alliance Milk Products, LLC
America's Country Stores Holdings, LLC
America's Country Stores, LLC
Diamond Cross, LLC,
FMR, Inc.
Forage Genetics, Inc.
Golden State Feeds, LLC
Golden Valley Dairy Products
L.L. Olds Seed Company
Land O'Lakes Farmland Feed LLC
Land O'Lakes Holdings, Inc.
Land O'Lakes International Development Corporation
LOL Holdings II, Inc.
LOL Power, LLC
Milk Products, LLC
North Coast Fertilizer II, Inc.
Northwest Food Products Company, Inc.
Northwest Food Products Transportation LLC
Nutra-Blend, LLC
PMI Nutrition, LLC
PMI Agriculture, L.L.C.
PMI Nutrition International, LLC
Purina Xxxxx, LLC
QC, Inc.
QC Holdings Inc.
QC Industries, Inc.
Realty LOL, Inc.
Research Seeds, Inc.
Seed Research, Inc.
Xxxxxx Products, LLC
