REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into this 27th day of June, 2001, by and between Pinnacle Foods, Inc., a
Pennsylvania corporation (the "Company"), and Smithfield Foods, Inc., a Virginia
corporation ("Smithfield").
Recitals
The Company and Smithfield have entered into that certain Stock Purchase
Agreement dated as of May 31, 2001 (the "Stock Purchase Agreement") whereby the
parties agreed that Smithfield would purchase and the Company would issue and
sell certain shares of common stock of the Company (the "Common Stock"),
pursuant to the terms and conditions contained therein; and
In consideration of the terms and conditions of the Stock Purchase
Agreement and the Credit Agreement (as defined in the Stock Purchase Agreement),
the Company has agreed to provide the registration rights set forth in this
Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
Section 1 Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders" means any holder or holders of shares of Common Stock of the
Company.
"Other Shares" means at any time those shares of Common Stock, which do not
constitute Primary Shares or Registrable Shares.
"Primary Shares" means at any time the authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Shares" means at any time, with respect to any Holder, the
shares of Common Stock held by such Holder which constitute Restricted Shares.
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"Restricted Shares" means at any time, with respect to any Holder, the
shares of Common Stock, any other securities which by their terms are
exercisable or exchangeable for or convertible into Common Stock, or other
securities which are so exercisable or convertible, and any securities received
in respect thereof, which are held by such Holder and which have not previously
been sold to the public pursuant to a registration statement under the
Securities Act or pursuant to Rule 144 or which are not (or would not be, upon
any such exercise, exchange or conversion) eligible for sale by the holder
thereof under Rule 144(k) or any successor rule thereto or any complementary
rule thereto.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act as such rule may be amended from time to time, or any successor
rule then in force.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Selling Shareholders' Counsel" means one counsel selected by the Holders
of a majority of the Registrable Shares being included in any registration.
"Transfer" means any disposition of any Restricted Shares or of any
interest therein which constitutes a sale within the meaning of the Securities
Act, other than any disposition pursuant to an effective registration statement
under the Securities Act and complying with all applicable state securities and
"blue sky" laws.
Xxxxxxx 0 Xxxxxx Xxxxxxxxxxxx.
(a) Smithfield may at any time, after the Company has registered its
Common Stock under the Exchange Act, make a written request for registration
under the Securities Act of all or part of its Registrable Shares (a "Share
Demand Registration"); provided, however, that (i) Smithfield and its
successors, transferees and successive transferees shall be entitled to initiate
only one (1) Share Demand Registration and (ii) such Registrable Shares shall be
sold through a firm commitment underwriting. Such request shall specify the
aggregate number of the Registrable Shares proposed to be sold, which aggregate
number shall be greater than the number of shares of Common Stock which could be
sold during a three-month period under Rule 144(e)(1).
(b) A registration will count as a Share Demand Registration when it
has become effective, unless a stop order is entered before the Registrable
Shares included in such registration have been sold thereunder. In any
registration initiated by Smithfield as a Share Demand Registration, Smithfield
will pay all Demand Registration Expenses (as hereinafter defined) in connection
therewith, whether or not it becomes effective, except as otherwise provided in
Section 2(c) below. However, if prior to effectiveness, Smithfield withdraws its
request for a Share Demand Registration other than pursuant to Section 2(c)
below, it may not request another Share Demand Registration until it has paid
all Demand Registration Expenses in connection with the withdrawn request.
(c) The Company may postpone for up to ninety (90) days the filing or
the effectiveness of a registration statement for a Share Demand Registration if
the
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Company determines that such Share Demand Registration would have a material
adverse effect on any pending material financing, acquisition or corporate
reorganization or other material corporate development or would require
premature disclosure thereof; provided that in such event Smithfield shall be
entitled to withdraw such request and, if such request is withdrawn, the Company
will pay all Registration Expenses in connection with such requested
registration incurred between the date of the demand and the date of the
Company's decision to postpone such filing or effectiveness. The Company may
delay a Share Demand Registration under this section only once during any
twelve-month period.
Section 3 Piggyback Registration.
(a) If the Company at any time proposes for any reason to register
Primary Shares, Restricted Shares or Other Shares under the Securities Act
(other than a registration in connection with an exchange offer or offering
solely to the Company's shareholders or filed in connection with an employee
stock option or other benefit plan), the Company shall promptly give written
notice to Smithfield of its intention to so register the Primary Shares,
Restricted Shares or Other Shares and, upon the written request, given within
ten (10) days after delivery of any such notice by the Company, of Smithfield to
include in such registration Registrable Shares held by Smithfield (which
request shall specify the number of Registrable Shares proposed to be included
in such registration), the Company shall use its commercially reasonable efforts
to cause all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; provided, however, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of the Primary Shares, Restricted Shares or Other Shares
proposed to be registered by the Company or Holders, then (A) if such
registration is in part an underwritten primary registration on behalf of the
Company, the Company will include in such registration (i) first, the Primary
Shares, and (ii) second, the Registrable Shares requested to be included in such
registration pro rata from among the Holders of such Registrable Shares
according to the number of Registrable Shares requested by them to be so
included, and (iii) third, any Other Shares in such manner as the Company may
determine, and (B) if such registration is an underwritten secondary
registration on behalf of Holders of the Company's securities, the Company will
include in such registration (i) first, the Registrable Shares to be included
therein by the Holders exercising demand registration rights with respect
thereto, (ii) second, other Registrable Shares requested to be included in such
registration, pro rata from among Holders of such Registrable Shares according
to the number of Registrable Shares requested by them to be so included, and
(iii) third, any Other Shares, in such manner as the Company may determine. In
the event the Company determines not to pursue, or to withdraw, a registration
as to which it has given notice pursuant to this section, the Holders of
Registrable Securities requesting to be included in such registration shall have
no further rights with respect to such proposed registration. Nothing contained
in this Section 3 shall be or be deemed to be the creation of any registration
right in any party other than Smithfield
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(b) Smithfield may exercise its rights under this Section 3 on an
unlimited number of occasions. The Company shall pay all Registration Expenses
of any registration effected under this Section, except that Smithfield shall
pay (or reimburse the Company for) the amount of registration, filing or listing
fees relating to its Registrable Shares included in the registration and shall
pay the fees of its counsel if different from Selling Shareholders' Counsel.
(c) No Holder may participate in any registration under this section
which is underwritten unless such Holder (a) agrees to sell such Holder's
Registrable Shares on the basis provided in any underwriting agreement (with
terms customary in underwriting agreements for secondary distributions) approved
by the Company (including, without limitation, pursuant to the terms of any
over-allotment or "green shoe" option requested by the managing underwriter(s),
provided that no Holder of Registrable Shares will be required to sell more than
the number of Registrable Shares that such Holder has requested the Company to
include in any registration); provided, that no Holder of Registrable Shares
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution) or to undertake any indemnification or contribution
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in Section 6.
Section 4 Preparation and Filing.
If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its commercially reasonable efforts to
effect the registration of any Registrable Shares, the Company shall, as
expeditiously as practicable:
(a) file a registration statement with the Commission as soon as
practicable, but in any event, within ninety (90) days after receipt of a
request for registration, and use its commercially reasonable efforts to cause a
registration statement that registers such Registrable Shares to become and
remain effective for a period of ninety (90) days or until all of such
Registrable Shares have been disposed of (if earlier);
(b) furnish, at least ten business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to the Selling Shareholders' Counsel, copies of all such documents
proposed to be filed (it being understood that such ten business-day period need
not apply to successive drafts of the same document proposed to be filed so long
as such successive drafts are supplied to such counsel in advance of the
proposed filing by a period of time that is customary and reasonable under the
circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least a period of 90 days or until all such Registrable Shares have been
disposed of (if earlier)
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and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of such Registrable Shares;
(d) notify in writing the Selling Shareholders' Counsel promptly of
the receipt by the Company of any notification with respect to:
(i) any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement thereto or
any request by the Commission for the amending or supplementing thereof or for
additional information with respect thereto:
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of such registration statement or prospectus or any amendment
or supplement thereto or the initiation or threatening of any proceeding for
that purpose; and
(iii) the suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes;
(e) use its commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Shares reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller of Registrable Shares to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such seller; provided, however,
that the Company will not be required to qualify generally to do business,
subject itself to general taxation or consent to general service of process in
any jurisdiction where it would not otherwise be required so to do but for this
Section;
(f) furnish to each seller of such Registrable Shares such number of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such seller
of Registrable Shares may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Shares;
(g) use its commercially reasonable efforts to cause such Registrable
Shares to be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the seller or sellers thereof to consummate the disposition of
such Registrable Shares;
(h) notify on a timely basis each seller of such Registrable Shares at
any time when a prospectus relating to such Registrable Shares is required to be
delivered under the Securities Act within the appropriate period mentioned in
Section 4(a) the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements
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therein not misleading in light of the circumstances then existing (and upon
receipt of such notice such seller shall cease use of such prospectus until
supplemented or amended) and, at the request of such seller, prepare and furnish
to such seller a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
offerees of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing;
(i) make available for inspection by the Selling Shareholders' Counsel
or any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information reasonably
requested in connection with such registration statement;
(j) in any underwritten offering, use reasonable commercial efforts to
obtain from its independent certified public accountants "cold comfort" letters
in customary form and at customary times and covering matters of the type
customarily covered by cold comfort letters;
(k) in any underwritten offering, use reasonable commercial efforts to
obtain from its counsel an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
entity) for such Registrable Shares;
(m) issue to any underwriter to which any seller of Registrable Shares
may sell shares in such offering certificates evidencing such Registrable
Shares;
(n) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are then listed or, if the Common Stock
is not listed on a national securities exchange, use commercially reasonable
efforts to qualify such Registrable Shares for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc. (the
"NASD") or such national securities exchange as the Holders of a majority of
such Registrable Shares shall request if such shares meet the listing
requirements of such system or exchange, respectively;
(o) otherwise comply with all applicable rules and regulations of the
Commission and make available to its security holders, as soon as reasonably
practicable, earnings statements (which need not be audited) covering a period
of 12 months beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the provisions
of Section 11(a) of the Securities Act; and
(p) use its commercially reasonable efforts to take all other steps
necessary to effect the registration of such Registrable Shares contemplated
hereby.
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Section 5 Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, rating agency
fees, printing expenses, messenger and delivery expenses, internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees), the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange or on NASDAQ, the fees
and disbursements of counsel for the Company and all independent certified
public accountants (including the expenses of any annual audit, special audit,
or "cold comfort" letters required by or incident to such performance), the fees
and disbursements of one counsel retained for the Holders of the Registrable
Shares being registered, securities acts liability insurance (if the Company
elects to obtain such insurance), the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration and
fees and expenses of any underwriters or other persons retained by the Company,
including fees or expenses of any underwriter's counsel (but not including any
underwriting discounts or commissions attributable to the sale of Registrable
Shares, which shall be borne by the Holders of such Registrable Shares) are
herein referred to as the "Registration Expenses". "Demand Registration
Expenses" shall mean Registration Expenses other than securities act liability
insurance and fees and disbursements of counsel for Holders of Registrable
Securities being registered (other than Smithfield).
Section 6 Indemnification.
(a) In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Company shall indemnify and hold
harmless Smithfield, its officers, directors, partners and employees, each
underwriter, broker or any other person acting on behalf of Smithfield and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, 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, or any violation by the Company of any rule or
regulation promulgated pursuant to any Federal, state or common law rule or
regulation including, without limitation, the Securities Act, applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, and shall reimburse Smithfield, such officer,
director, partner or employee, such underwriter, such broker or such other
person acting on behalf of such seller and each such controlling person for any
legal or other expenses reasonably incurred by any
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of them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by Smithfield or
underwriter which specifically provides that it is for use in the preparation
thereof.
(b) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, Smithfield shall indemnify
and hold harmless the Company, its officers, directors, partners and employees,
each underwriter, broker or any other person acting on behalf of the Company and
each other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, 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 the Company, such officer, director,
partner or employee, such underwriter, such broker or such other person acting
on behalf of such seller and each such controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that Smithfield shall only be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
Smithfield which specifically provides that it is for use in the preparation
thereof.
(c) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, the Company shall procure that
each Holder that sells Registrable Shares in such registration shall indemnify
and hold harmless (in the same manner and to the same extent as set forth in the
preceding paragraph of this Section) the Company and Smithfield, each director
of the Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of such
seller, each person who controls any of the foregoing persons within the meaning
of the Securities Act and each other Holder that sells
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Registrable Shares under such registration statement with respect to any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such indemnifying Holder or underwriter specifically for use in connection
with the preparation of such registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document; provided, however, that the
obligation to indemnify will be several, not joint and several, among such
Holders of Registrable Shares, and the maximum amount of liability in respect of
such indemnification shall be in proportion to and limited to, in the case of
each Holder of Registrable Shares, an amount equal to the gross proceeds
actually received by such Holder from the sale of Registrable Shares effected
pursuant to such registration.
(d) The indemnification required by this Section will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred, subject to prompt refund in the event
any such payments are determined not to have been due and owing hereunder.
(e) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in this Section, such
indemnified party shall give written notice to the party required to provide
indemnification of the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the latter in connection with
the defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees and
expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this
Section. The failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying parties of its obligations under this Section
unless such failure shall have a material adverse effect on the indemnifying
party's ability to defend such claim. Notwithstanding the foregoing, a party who
is claimed to owe an indemnity obligation may defend a claim against a third
party while reserving the right to contest the asserted indemnity obligation,
and to the extent the party who is claimed to owe an indemnity obligation
prevails in such contest, the party asserting the right to
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indemnification shall reimburse the other party for all amounts incurred by such
party in the defense thereof and all asserted losses, claims, damages or
liabilities, if any, for which payment had been made.
(f) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of such
indemnified party and will survive the transfer of securities.
(g) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage or
liability as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party 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 indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders that sell Registrable Shares agree that it would not
be just and equitable if contributions pursuant to this Section 6(g) were
determined by pro rata allocation or by any other method of allocation which did
not take into account the equitable considerations referred to herein. The
amount paid or payable to an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to above shall be deemed to
include, subject to the limitation set forth in this Section, any legal or other
expenses reasonably incurred in connection with investigating or defending the
same. Notwithstanding the foregoing, in no event shall the amount contributed by
a Holder that sells Registrable Shares exceed the aggregate gross offering
proceeds received by such seller from the sale of its Registrable Shares.
(h) The indemnified party shall make no settlement of any claim or
litigation which would give rise to liability on the part of the indemnifying
parties under any indemnity contained in this Section without the written
consent of the indemnifying parties, which consent shall not be unreasonably
withheld or delayed, and no indemnifying party shall make any settlement of any
such claim or litigation without the consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed. If a firm offer is made
to settle a claim or litigation and the indemnifying party notifies the
indemnified party in writing that the indemnifying party desires to accept and
agree to such offer, but the indemnified party elects not to accept or agree to
such offer within ten days after receipt of written notice from the indemnifying
party of the terms of such offer, then, in such event, the party that is
defending such claim shall continue to contest or defend such claim or
litigation and, in such event, the total maximum liability of the indemnifying
party to indemnify or otherwise reimburse the indemnified party with respect to
such claim or
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litigation shall be limited to and shall not exceed the amount of such
settlement offer, plus reasonable out-of-pocket costs and expenses (including
reasonable fees and disbursements of counsel) to the date of notice that the
indemnifying party desired to accept such settlement offer and the balance of
such liability shall be borne and paid for by such indemnified party.
Section 7 Information by Holder.
Each Holder selling Registrable Shares in a proposed registration shall
furnish to the Company such written information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
Section 8 Exchange Act Compliance.
From and after the date a registration statement filed by the Company
pursuant to the Exchange Act relating to any class of the Company's securities
shall have become effective, the Company shall comply with all of the reporting
requirements of the Exchange Act and with all other public information reporting
requirements of the Commission which are conditions to the availability of Rule
144 for the sale of the Common Stock. The Company shall supply upon request such
information as may be necessary for such Holder to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
Section 9 No Conflict of Rights.
The Company represents and warrants to Smithfield that the registration
rights granted to Smithfield hereby do not conflict with any other registration
rights granted by the Company. The Company shall not, without the prior written
consent of Smithfield after the date hereof, grant any registration rights which
conflict with, or are superior to, the registration rights granted hereby.
Section 10 Miscellaneous.
(a) Termination. This Agreement shall terminate and be of no further
force or effect upon the date on which there remain no Restricted Shares
outstanding. The indemnification provisions of Section 6 shall survive the
termination of this Agreement.
(b) Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Company and Smithfield and, subject to Section 10(c), their
respective successors and assigns.
(c) Assignment. Smithfield may assign its rights hereunder to any
persons or entities that acquire Restricted Shares from Smithfield (unless such
transfer is made in violation of the terms of the Standstill Agreement);
provided, however, that such person or entity shall, as a condition to the
effectiveness of such assignment, be required
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to execute a counterpart to this Agreement whereupon such person or entity shall
have the benefits of, and shall be subject to the restrictions contained in,
this Agreement with respect to such Restricted Shares.
(d) Entire Agreement. This Agreement constitutes the entire agreement
of the parties as to the subject matter herein contained, superseding any and
all prior or contemporaneous oral and prior written agreements, understandings,
letters of intent or commitment letters.
(e) Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when delivered in
person, by telecopy, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth on the signature pages hereto or such other address as may
hereafter be designated in writing by the addressee to the addressor at the
address and telecopier numbers set forth in the Shareholders Agreement. All such
notices, requests, consents and other communications shall be deemed to have
been delivered (a) in the case of personal delivery or delivery by telecopy, on
the date of such delivery, (b) in the case of nationally-recognized overnight
courier, on the next business day and (c) in the case of mailing, on the third
business day following such mailing if sent by certified mail, return receipt
requested.
(f) Modifications; Amendments; Waivers. The terms and provisions of
this Agreement may not be modified or amended, except pursuant to a writing
signed by the Company and Smithfield.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(h) Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(i) Severability. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
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(j) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania, without giving
effect to principles governing conflicts of laws.
(k) Holdback Agreements. (i) Smithfield shall not and hereby agrees
not to effect any sale or distribution of Common Stock during the seven days
prior to and the 180-day period beginning on the effective date of any
underwritten registration in which Smithfield had a right to participate in
pursuant to the provisions of this Agreement (except as part of such
underwritten registration), unless the underwriters managing such underwritten
registration otherwise agree in writing.
(ii) The Company will not effect any sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Share Demand
Registration (except or pursuant to (i) registrations on Forms S-4 or S-8 or any
successor or similar form, or (ii) sales exempt from the registration
requirements of the Securities Act), unless the underwriters managing such
underwritten registration otherwise agree in writing.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their authorized officers as of the day and year first above
written.
PINNACLE FOODS, INC.
By
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Name:
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Title:
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Address:
SMITHFIELD FOODS, INC.
By:
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Name:
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Title:
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Address:
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