EXECUTION COPY
$350,000,000
PURINA XXXXX, INC.
9% Senior Subordinated Notes Due 2010
REGISTRATION RIGHTS AGREEMENT
March 12, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Purina Xxxxx, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Credit Suisse First Boston
Corporation and Chase Securities Inc. (together, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement
dated March 6, 1998 (the "Purchase Agreement"), $350,000,000
aggregate principal amount of its 9% Senior Subordinated Notes
Due 2010 (the "Initial Securities"). The Initial Securities will
be issued pursuant to an Indenture, dated as of March 12, 1998
(the "Indenture"), between the Company and The First National
Bank of Chicago (the "Trustee"). As an inducement to the Initial
Purchasers, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Initial Securities (including,
without limitation, the Initial Purchasers), the Exchange
Securities (as defined below) and the Private Exchange Securities
(as defined below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall, at its own
cost, after the date of original issue of the Initial Securities
(the "Issue Date"), prepare and, not later than 90 days after (or
if the 90th day is not a business day, the first business day
thereafter) the Issue Date, file with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to a proposed offer (the "Registered Exchange
Offer") to the Holders of Transfer Restricted Securities (as
defined in Section 6 hereof), who are not prohibited by any law
or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of
debt securities (the "Exchange Securities") of the Company issued
under the Indenture and identical in all material respects to the
Initial Securities (except for the transfer restrictions relating
to the Initial Securities and the provisions relating to the
matters described in Section 6 hereof) that would be registered
under the Securities Act. The Company shall use its best efforts
to cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 150 days (or if the
150th day is not a business day, the first business day
thereafter) after the Issue Date of the Initial Securities and
shall keep the Exchange Offer Registration Statement effective
for not less than 30 days (or longer, if required by applicable
law) after the date notice of the Registered Exchange Offer is
mailed to the Holders (such period being called the "Exchange
Offer Registration Period").
If the Company effects the Registered Exchange Offer, the
Company will be entitled to close the Registered Exchange Offer
30 days after the commencement thereof provided that the Company
has accepted all the Initial Securities theretofore validly
tendered in accordance with the terms of the Registered Exchange
Offer.
Following the declaration of the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
commence the Registered Exchange Offer, it being the objective of
such Registered Exchange Offer to enable each Holder of Transfer
Restricted Securities (as defined in Section 6 hereof) electing
to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and
has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by
any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from
and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under
the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption
therefrom, (i) each Holder, including an Initial Purchaser, which
is a broker-dealer electing to exchange Initial Securities,
acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and (c)
Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that
elects to sell Private Exchange Securities (as defined below)
acquired in exchange for Securities constituting any portion of
an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company shall use its best efforts to keep the Exchange
Offer Registration Statement effective and to amend and
supplement the prospectus contained therein, in order to permit
such prospectus to be lawfully delivered by all persons subject
to the prospectus delivery requirements of the Securities Act for
such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities;
provided, however, that (i) in the case where such prospectus and
any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days
and the date on which all Exchanging Dealers have sold all
Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Company shall make
such prospectus and any amendment or supplement thereto,
available to any broker-dealer for use in connection with any
resale of any Exchange Securities for a period of not less than
90 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any
Initial Purchaser holds Initial Securities acquired by it as part
of its initial distribution, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Registered
Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange
(the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of
the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the
several states of the United States, but excluding provisions
relating to the matters described in Section 6 hereof) to the
Initial Securities (the "Private Exchange Securities"). The
Initial Securities, the Exchange Securities and the Private
Exchange Securities are herein collectively called the
"Securities".
In connection with the Registered Exchange Offer, the
Company shall:
(a) mail to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and
related documents;
(b) keep the Registered Exchange Offer open for
acceptance for not less than 30 days (or longer, if
required by applicable law) after the date notice thereof
is mailed to the Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee
or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on
the last business day on which the Registered Exchange
Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(x) accept for exchange all the Initial Securities
validly tendered and not validly withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange;
(y) deliver or cause to be delivered, to the Trustee
for cancellation all the Initial Securities so accepted for
exchange; and
(z) cause the Trustee to authenticate and deliver
promptly to each Holder of Initial Securities, Exchange
Securities or Private Exchange Securities, as the case may
be, equal in principal amount to the Initial Securities of
such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities
will not be subject to the transfer restrictions set forth in the
Indenture and that all the Securities will vote and consent
together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange
Security issued pursuant to the Registered Exchange Offer and in
the Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Securities
surrendered in exchange therefor or, if no interest has been paid
on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that at the time of
the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in
the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in
the distribution of the Initial Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such
Holder is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such
Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv)
if such Holder is not a broker-dealer, that it is not engaged in,
and does not intend to engage in, the distribution of the
Exchange Securities and (v) if such Holder is a broker-dealer,
that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company
will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof
and any supplement thereto complies in all material respects with
the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and
any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law
or in applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Registered Exchange Offer is not consummated within 180 days of
the Issue Date, (iii) any Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities
in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate
in the Registered Exchange Offer or, in the case of any Holder
(other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely
tradeable Exchange Securities on the date of the exchange, the
Company shall take the following actions:
(a) The Company shall, at its cost, as promptly as
practicable (but in no event more than 30 days after so
required or requested pursuant to this Section 2) file with
the Commission and thereafter shall use its best efforts to
cause to be declared effective a registration statement
(the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, a "Registration
Statement") on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 6 hereof) by the Holders
thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the
"Shelf Registration"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have
the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing
to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be
lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will
terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto
or (ii) are no longer restricted securities (as defined in
Rule 144 under the Securities Act, or any successor rule
thereof). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily
takes any action that would result in Holders of Securities
covered thereby not being able to offer and sell such
Securities during that period, unless (I) such action is
required by applicable law or (II) such action is taken by
the Company in good faith and for valid business reasons
involving a material undisclosed event (but not including
the avoidance of the Company's obligations hereunder),
including, without limitation, the acquisition or
divestiture of assets so long as the Company promptly
complies with the requirements of Section 3(j) hereof, if
applicable; provided that in the case of clause (II), such
period shall not exceed 60 days in any 12-month period (a
"Suspension Period") (whereafter Additional Interest (as
defined in Section 6(a)) shall accrue and be payable); and
provided further that the number of days of any actual
Suspension Period shall be added on to the end of the
two-year period specified above. A Suspension Period shall
commence on and include the date that the Company gives
notice that the Shelf Registration Statement is no longer
effective or the prospectus included therein is no longer
usable for offers and sales of Securities and shall end on
the earlier to occur of (1) the date on which each seller
of Securities covered by the Shelf Registration Statement
either receives the copies of the supplemented or amended
prospectus contemplated by Section 3(j) hereof or is
advised in writing by the Company that the use of the
prospectus may be resumed and (2) the expiration of 60 days
in any 12-month period during which one or more Suspension
Periods has been in effect.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the
Shelf Registration Statement and the related prospectus and
any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules
and regulations of the Commission and (ii) not to contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by Section
1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission,
a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus
included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold
allotment from the original offering) is participating in
the Registered Exchange Offer or the Shelf Registration
Statement, the Company shall use its best efforts to
reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set
forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section and in Annex C hereto in the
"Plan of Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement and
include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Shelf Registration
Statement; (iv) include within the prospectus contained in
the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the
staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of Exchange Securities received by such
broker-dealer in the Registered Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the
reasonable judgment of the Initial Purchasers based upon
advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration
Statement, include, to the extent required by Item 507 of
Regulation S-K under the Securities Act, the names of the
Holders who propose to sell Securities pursuant to the
Shelf Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the
Initial Purchasers, the Holders of the Initial Securities
and any Participating Broker-Dealer from whom the Company
has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been
made) and, in the case of a Shelf Registration Statement,
the Holders of Securities covered thereby:
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission
and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission after such
Registration Statement has become initially effective
for amendments or supplements to the Registration
Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the Registration
Statement or the prospectus in order that the
Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor
omit to state a material fact required to be stated
therein or necessary to make the statements therein
(in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of the Registration
Statement.
(d) The Company shall, in the case of a Shelf
Registration, furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company shall, in the case of a Registered
Exchange Offer, deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and,
if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such
Holder may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by
each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial
Purchaser, any Exchanging Dealer, any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without
charge, as many copies of the final prospectus included in
the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of
this Agreement, to the use of the prospectus or any
amendment or supplement thereto by any Initial Purchaser,
if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the
offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities,
pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in
connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue
sky" laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any
and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement;
provided, however, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall cooperate with the Holders of
the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be
sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and
registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities
pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
Section 2(b)(II) or paragraphs (ii) through (v) of Section
3(b) above during the period for which the Company is
required to maintain an effective Registration Statement,
the Company shall promptly prepare and file a post-
effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will
not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders
of the Securities and any known Participating Broker-Dealer
in accordance with Section 2(b)(II) or paragraphs (ii)
through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus
have been made, then the Initial Purchasers, the Holders of
the Securities and any such Participating Broker-Dealers
shall suspend use of such prospectus, and, if requested by
the Company, will make reasonable efforts to return any
copies of such prospectus in their possession to the
Company at the Company's expense, and the period of
effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above
shall each be extended by the number of days from and
including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders
of the Securities and any known Participating Broker-Dealer
shall have received such amended or supplemented prospectus
pursuant to this Section 3(j).
(k) Not later than the effective date of the
applicable Registration Statement, the Company will provide
a CUSIP number for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case
may be, and provide the applicable trustee with printed
certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository
Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or the
Shelf Registration and will make generally available to its
security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and containing such changes, if
any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable
provisions of the Indenture.
(n) The Company may require each Holder of Securities
to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the
Holder and the distribution of the Securities as the
Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the
Company may exclude from such registration the Securities
of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such
request.
(o) The Company shall enter into such customary
agreements (including, if requested, an underwriting
agreement in customary form) and take all such other
action, if any, as the managing underwriter or the majority
in principal amount of the Holders of the Securities
covered by such Shelf Registration shall reasonably request
in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company
shall (i) make reasonably available for inspection by the
Holders of the Securities, any underwriter participating in
any disposition pursuant to the Shelf Registration
Statement and any attorney, accountant or other agent
retained by the majority in principal amount of the Holders
of the Securities covered by such Shelf Registration or any
such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested by the majority in
principal amount of the Holders of the Securities covered
by such Shelf Registration or any such underwriter,
attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be
reasonably necessary to enable such persons, to conduct a
reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers by you and
on behalf of the other parties, by one counsel designated
by and on behalf of the majority in principal amount of the
Holders of the Securities covered by such Shelf
Registration Statement; provided, further, however, that
any such records, documents and properties and such
information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of
such records, documents, properties or information shall be
kept confidential by any such Holder, underwriter,
attorney, accountant or other agent and shall be used only
in connection with such Shelf Registration Statement,
unless disclosure thereof is made in connection with a
court proceeding or required by law, or such information
has become available (not in violation of this agreement)
to the public generally or through a third party without an
accompanying obligation of confidentiality.
(q) In the case of any Shelf Registration, the
Company, if requested by the managing underwriter or the
majority in principal amount of the Holders of Securities
covered thereby, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in
customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters to
be covered by such opinion shall include, without
limitation, the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to
in Section 3(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence
of material legal or governmental proceedings involving the
Company and its subsidiaries; the absence of governmental
approvals required to be obtained in connection with the
Shelf Registration Statement, the offering and sale of the
applicable Securities, or any agreement of the type
referred to in Section 3(o) hereof; the compliance as to
form of such Shelf Registration Statement and any documents
incorporated by
reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture
Act, respectively; and, as of the date of the opinion and
as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein,
as then amended or supplemented, and from any documents
incorporated by reference therein of an untrue statement of
a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such
documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission
under the Exchange Act); (ii) its officers to execute and
deliver all customary documents and certificates and
updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public
accountants (and the independent public
accountants with respect to any other entity for which
financial information is provided in the Shelf Registration
Statement) to provide to the selling Holders of the
applicable Securities and any underwriter therefor a
comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No.
72.
(r) In the case of the Registered Exchange Offer, if
requested by any Initial Purchaser or any known
Participating Broker-Dealer, the Company shall cause (i)
its counsel to deliver to such Initial Purchaser or such
Participating Broker-Dealer a signed opinion in the form
set forth in Section 6(c) of the Purchase Agreement with
such changes as are customary in connection with the
preparation of a Registration Statement and (ii) its
independent public accountants and the independent public
accountants with respect to any other entity for which
financial information is provided in the Registration
Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary
form, meeting the requirements as to the substance thereof
as set forth in Section 6(a) of the Purchase Agreement,
with appropriate date changes.
(s) If a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Initial
Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as
the case may be, the Company shall xxxx, or caused to be
marked, on the Initial Securities so exchanged that such
Initial Securities are being canceled in exchange for the
Exchange Securities or the Private Exchange Securities, as
the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if
the Initial Securities have been rated prior to the initial
sale of such Initial Securities, confirm such ratings will
apply to the Securities covered by a Registration
Statement, or (b) if the Initial Securities were not
previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of a majority
in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if
any.
(u) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or
participate as a member of an underwriting syndicate or
selling group or "participate in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the
National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation,
by (i) if such Rules, including Rule 2720, shall so
require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of
the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend
the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all
other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated
hereby.
4. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance of its
obligations under Sections 1 through 3 hereof, whether or not the
Registered Exchange Offer or a Shelf Registration is filed or
becomes effective, and, in the event of a Shelf Registration,
shall bear or reimburse the Holders of the Securities covered
thereby for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal
amount of the Initial Securities covered thereby to act as
counsel for the Holders of the Initial Securities in connection
therewith.
5. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder of the Securities, any Participating
Broker-Dealer and each person, if any, who controls such Holder
or such Participating Broker-Dealer within the meaning of the
Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are
referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse,
as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in a Registration Statement
or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom
the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent
that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof
to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters,
their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders of the Securities if requested
by such Holders.
(b) Each Holder of the Securities, severally and not
jointly, will indemnify and hold harmless the Company and
individually its officers and directors and each person, if any,
who controls the Company within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages
or liabilities or any actions in respect thereof, to which the
Company or any such
controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was
made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending
any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company, its officers
and directors or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or
proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action
is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are
the subject matter of such action.
(d) If the indemnification provided for in this Section
5 is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified
party on the other from the exchange of the Securities, pursuant
to the Registered Exchange Offer, or (ii) if the allocation
provided by the foregoing 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) above
but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations.
The relative fault of the parties 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 on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim
which is the subject of this subsection (d). Notwithstanding any
other provision of this Section
5(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by
which the net proceeds received by such Holders from the sale of
the Securities pursuant to a Registration Statement exceeds the
amount of damages which such Holders have 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. For
purposes of this paragraph (d), each person, if any, who controls
such indemnified party within the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as
such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall
survive the sale of the Securities pursuant to a Registration
Statement and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a)
Additional interest (the "Additional Interest") with respect to
the Initial Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through
(iii) below a "Registration Default"):
(i) If by June 10, 1998, neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement
has been filed with the Commission;
(ii) If by September 8, 1998, neither the Registered
Exchange Offer is consummated nor, if required in lieu
thereof, the Shelf Registration Statement is declared
effective by the Commission; or
(iii) If after either the Exchange Offer Registration
Statement or the Shelf Registration Statement is declared
effective (A) such Registration Statement thereafter ceases
to be effective (other than to the extent permitted by
Section 2(b)(II) or 3(b)(ii)-(v) hereof); or (B) such
Registration Statement or the related prospectus ceases to
be usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities
during the periods specified herein because either (1) any
event occurs as a result of which the related prospectus
forming part of such Registration Statement would include
any 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 under which they were
made not misleading, or (2) it shall be necessary to amend
such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Initial Securities over
and above the interest set forth in the title of the Securities
from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.50% per
annum, increasing by 0.50% per annum at the end of each 90-day period
thereafter, calculated on the principal amount of the Notes as of
the day on which such interest is payable; provided, however,
that in no event shall such Additional Interest exceed 1.00% per
annum. Upon consummation of an Exchange Offer or the
effectiveness of a Shelf Registration Statement, the interest
rate of the Securities will revert to the rates respectively set
forth in the title of the Securities.
(b) A Registration Default referred to in Section
6(a)(iii)(B) hereof shall be deemed not to have occurred and be
continuing in relation to a Shelf Registration Statement or the
related prospectus if (i) such Registration Default has occurred
solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company
where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the
related prospectus, (y) other material events, with respect to
the Company that would need to be described in such Shelf
Registration Statement or the related prospectus or (z) a
Suspension Period not to exceed 45 days in any 12-month period
pursuant to Section 2(b) and (ii) in the
case of clause (y), the Company is proceeding promptly
and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default
occurs for a continuous period in excess of 30 days, Additional
Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to
clause (i), (ii) or (iii) of Section 6(a) above will be payable
in cash on the regular interest payment dates with respect to the
Initial Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate
by the principal amount of the Initial Securities, multiplied by
a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security
until (i) the date on which an Initial Security has been
exchanged by a person other than a broker-dealer for a freely
transferable Exchange Security in the Registered Exchange Offer,
(ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Initial Security for an Exchange Security,
the date on which such Exchange Security is sold to a purchaser
who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange
Offer Registration Statement, (iii) the date on which such
Initial Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Initial
Security is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
7. Rules 144 and 144A. The Company shall use its best
efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at
any time the Company is not required to file such reports, it
will, upon the request of any Holder of Initial Securities, make
publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A.
The Company covenants that it will take such further action as
any Holder of Initial Securities may reasonably request, all to
the extent required from time to time to enable such Holder to
sell Initial Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The
Company will provide a copy of this Agreement to prospective
purchasers of Initial Securities identified to the Company by the
Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration are to be
sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer
the offering ("Managing Underwriters") will be selected by the
Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering
and reasonably acceptable to the Company.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's
Transfer Restricted Securities on the basis reasonably provided
in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may
not be given,
except by the Company and the written consent of
the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand
delivery, first-class mail, facsimile transmission, or air
courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most
current address given by such Holder to the Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Xx., Esq.
(3) if to the Company, at its address as follows:
Purina Xxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Attention: August X. Xxxxxxxx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by
recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to its securities
that is
inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon the Company, the Initial Purchasers and their respective
successors and assigns, including, without limitation and without
the need for an express assignment, subsequent holders of the
Initial Securities.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby.
(h) Severability. If 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.
(i) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount
of Securities is required hereunder, Securities held by the
Company or its affiliates (other than subsequent Holders of
Securities if such subsequent Holders are deemed to be affiliates
solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the several
Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
PURINA XXXXX, INC.
By: /s/ August X. Xxxxxxxx
----------------------
Name: August X. Xxxxxxxx
Title: Vice President,
General Counsel and
Secretary
The foregoing Registration
Rights Agreement is hereby
confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such Exchange Securities. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales
of Exchange Securities received in exchange for Initial
Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of
180 days after the Expiration Date (as defined herein), or such
shorter period which will terminate when such broker-dealers have
completed all resales subject to applicable prospectus delivery
requirements, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for
its own account in exchange for Initial Securities, where such
Initial Securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such Exchange Securities. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial
Securities were acquired as a result of market-making activities
or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date (as defined herein),
or such shorter period which will terminate when such
broker-dealers have completed all resales subject to applicable
prospectus delivery requirements, it will make this prospectus,
as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ,
199 , all dealers effecting transactions in the Exchange Securities
may be required to deliver a prospectus.1
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the
Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer
that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the
meaning of the Securities Act and any profit on any such resale
of Exchange Securities and any commission or concessions received
by any such persons may be deemed to be underwriting compensation
under the Securities Act. The Letter of Transmittal states that,
by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date (as
defined herein), or such shorter period which will terminate when
such broker-dealers have completed all resales subject to
applicable prospectus delivery requirements, the Company will
promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of
the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
--------
1 In addition, the legend required by Item 502(e) of
Regulation S-K will appear on the back cover page of the
Exchange Offer prospectus.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _____________________________________________
Address: ___________________________________________
__________________________________________
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities
that were acquired as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
