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EXHIBIT 4.7
EXECUTION COPY
NEW LLC INTERESTS
REGISTRATION RIGHTS AGREEMENT
by
PSF HOLDINGS, L.L.C.
for the benefit of
THE HOLDERS NAMED HEREIN
Dated as of September 17, 1996
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TABLE OF CONTENTS
1. Definitions......................................1
2. Shelf Registration...............................4
3. Demand Registrations.............................5
4. Piggyback Registration...........................7
5. Blackout Periods.................................8
6. Expenses.........................................9
7. Registration Procedures..........................9
8. Underwritten Offerings..........................13
9. Preparation; Reasonable Investigation...........14
10. Indemnification.................................15
11. Registration Rights to Others...................18
12. Adjustments Affecting Registrable Securities....19
13. Rule 144 and Rule 144A..........................19
14. Amendments and Waivers..........................19
15. Nominees for Beneficial Owners..................19
16. Assignment......................................20
17. Calculation of Percentage of Principal
Amount of Registrable Securities.................20
18. Miscellaneous....................................20
SCHEDULE I
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NEW LLC INTERESTS REGISTRATION RIGHTS AGREEMENT
NEW LLC INTERESTS REGISTRATION RIGHTS AGREEMENT, dated as of September 17,
1996 (this "Agreement"), by PSF Holdings, L.L.C., a Delaware limited liability
company (the "Company"), for the benefit of the holders of Registrable
Securities (as hereinafter defined) (the "Holders").
This Agreement is being entered into in accordance with the Plan in
connection with the acquisition of Registrable Securities (each as hereinafter
defined) for the benefit of certain holders (the "Initial Holders") pursuant to
the Plan. Each Initial Holder owns the aggregate number of Registrable
Securities specified with respect to such original Holder in Schedule I hereto.
To induce the holders of Registrable Securities to vote in favor of the
Plan and to accept the issuance of such securities by the Company under the
Plan, the Company has undertaken to register the Registrable Securities under
the "Securities Act" (as hereinafter defined) and to take certain other actions
with respect to the Registrable Securities. This Agreement sets forth the
terms and conditions of such undertaking.
In consideration of the premises and the mutual agreements set forth
herein, the Company hereby agrees as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, is under common control with, or
is controlled by, such other Person. For purposes of this definition,
"control" means the ability of one Person to direct the management and policies
of another Person, whether by means of contract, securities ownership, or
otherwise.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to be
closed.
"Class A Registrable Securities" means the (i) Class A Units held by the
Initial Holders, (ii) any Class A Units issued or issuable with respect to, in
exchange for, or upon exercise of any of the Warrants (as defined in the Plan),
(iii) any Class A Units received upon conversion of a Class B Unit which is at
such time, a Registrable Security hereunder, and (iv) any other securities
issued or issuable with respect to, or in exchange for, the units described in
clause (i), (ii) or (iii), including any issuance by way of a recapitalization,
merger, consolidation, reorganization or otherwise; provided, however, that
Class A Registrable Securities shall cease to be Registrable Securities upon
(a) any sale or distribution thereof pursuant to an effective registration
statement under the Securities Act; (b) any sale or distribution permitting the
recipient thereof to sell such securities without restriction under the
Securities Act and any state securities laws; or (c) the receipt by a Holder of
such Class A Registrable Securities of an opinion,
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satisfactory in form and substance to such Holder, by legal counsel,
reasonably acceptable to such Holder, to the effect that the public sale or
distribution of such Class A Units without restriction under the Securities Act
and any state securities laws does not require the registration of such Class A
Units under the Securities Act and any state securities laws or the use of an
applicable exemption therefrom.
"Class B Registrable Securities" means the (i) Class B Units, issued to
the MS Member as of the date hereof (ii) any Class B Units issued or issuable
with respect to, in exchange for, or upon exercise of any of the Warrants (as
defined in the Plan), (iii) any Class B Units received upon conversion of a
Class A Unit which is, at such time, a Registrable Security hereunder and (iv)
any other securities issued or issuable with respect to, or in exchange for,
the units described in clause (i), (ii), or (iii) including any issuance by way
of a recapitalization, merger, consolidation, reorganization or otherwise;
provided, however, that Class B Registrable Securities shall cease to be Class
B Registrable Securities upon (A) any sale or distribution thereof pursuant to
an effective registration statement under the Securities Act; (B) any sale or
distribution permitting the recipient thereof to sell such securities without
restriction under the Securities Act and any state securities laws; or (C) the
receipt by a Holder of such Class B Registrable Securities of any opinion,
satisfactory in form and substance to such Holder, by legal counsel, reasonably
acceptable to such Holder, to the effect that the public sale or distribution
of such Class B Units without restriction under the Securities Act and any
state securities laws does not require the registration of such Class B Units
under the Securities Act and any state securities laws or the use of any
applicable exemption therefrom.
"Class A Units" has the meaning set forth in the LLC Agreement.
"Class B Units" has the meaning set forth in the LLC Agreement.
"Commission" means the United States Securities and Exchange Commission.
"Company" has the meaning provided in the preamble hereto.
"Company Indemnitee" has the meaning provided in Section 10 hereof.
"Demand Registration" means any registration pursuant to Section 3 hereof.
"Disadvantageous Condition" has the meaning provided in Section 5 hereof.
"Effectiveness Period" has the meaning provided in Section 2 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder, or any similar or
successor statute.
"Expenses" means all expenses incident to the Company's performance of or
compliance with its obligations under this Agreement, including, without
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limitation, all registration, filing, listing, stock exchange and NASD fees,
all fees and expenses of complying with state securities or blue sky laws
(including fees, disbursements and other charges of counsel for the
underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with "comfort" letters required by or incurred in
connection with "comfort" letters required by or incident to such performance
and compliance, any fees and disbursements of underwriters customarily paid by
issuers and sellers of securities and the reasonable fees, disbursements and
other charges of one firm of counsel (per registration prepared) chosen by the
Holders of a majority of the aggregate Registrable Securities, but excluding
broker-dealer and underwriting concessions, allowances, discounts and
commissions and applicable transfer taxes, if any, which concessions,
allowances, discounts, commissions and transfer taxes shall be borne by the
seller or sellers of Registrable Securities in all cases.
"Holder" means (i) the Initial Holders and (ii) any transferees of the
Registrable Securities (a) whose securities continue to be Registrable
Securities and (b) who have been assigned the transferor's rights under Section
16 hereof.
"Holder Indemnitee" shall have the meaning provided in Section 10 hereof.
"Initial Shelf Registration" has the meaning set forth in Section 2
hereof.
"Initial Holders" has the meaning set forth in the preamble hereto.
"Initiating Holders" has the meaning set forth in Section 3 hereof.
"LLC Agreement" is the limited liability company agreement of PSF
Holdings, L.L.C., dated as of September 17, 1996, as from time to time in
effect.
"Loss" and "Losses" shall have the meaning provided in Section 10 hereof.
"MS Member" has the meaning set forth in the LLC Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"Offering Documents" shall have the meaning provided in Section 10 hereof.
"Person" means any individual, corporation, partnership, firm, limited
liability company, joint venture, association, joint stock company, trust,
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unincorporated organization, governmental or regulatory body or subdivision
thereof or other entity.
"Plan" means the joint plan of reorganization of PSF Finance L.P. and
certain affiliated entities as confirmed by the United States Bankruptcy Court
for the District of Delaware by order entered September 6, 1996.
"PSF" means Premium Standard Farms, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company.
"Public Offering" means a public offering and sale of securities pursuant
to an effective registration statement under the Securities Act.
"Registrable Securities" means, collectively, the Class A Registrable
Securities and the Class B Registrable Securities.
"Requesting Holders" has the meaning set forth in Section 4 hereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, or any similar or successor
statute.
"Shelf Registration" has the meaning set forth in Section 2 hereof.
"Subsequent Shelf Registration" has the meaning set forth in Section 2
hereof.
2. Shelf Registration.
a. Initial Shelf Registration. The Company shall (i) cause to be filed
as soon as practicable, but not later than April 30, 1997, a shelf
registration statement pursuant to Rule 415 promulgated under the
Securities Act (the "Initial Shelf Registration") providing for the sale
by the Holders, from time to time, of all of the Class A Registrable
Securities and (ii) use its best efforts to have such Initial Shelf
Registration thereafter declared effective by the Commission not later
than June 30, 1997. If some or all of the Holders of Class B Units
desire to effect the registration under the Securities Act of outstanding
Class B Units at any time prior to the termination of the Effectiveness
Period, such Holders may make a written request that the Company effect
the registration under the Securities Act of all or any portion of the
Class B Registrable Securities. Such request will specify the number of
Class B Units proposed to be sold. Upon receipt of such written notice,
the Company shall include such Class B Units in the Shelf Registrations
as soon as practicable.
b. Subsequent Shelf Registrations. If the Initial Shelf Registration
is withdrawn or otherwise becomes unavailable for use prior to the end of
the Effectiveness Period, then promptly following (or, if possible, prior
to) such withdrawal or unavailability the Company shall file, and shall
use its best efforts to cause the Commission
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to declare effective, a subsequent registration statement for a
secondary offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act covering all of the Class A Registrable
Securities and the Class B Units requested to be registered pursuant to
Section 2(a) which remain outstanding (a "Subsequent Shelf
Registration"). To the extent the Company is aware of such withdrawal or
unavailability prior to the occurrence of same, it shall use its best
efforts to have the Subsequent Shelf Registration filed at such time
prior to such withdrawal or unavailability which is reasonably calculated
to cause the Subsequent Shelf Registration to become effective on or
before the date of such withdrawal or unavailability, and, in any event,
on or before 180 days prior to such withdrawal or unavailability.
c. Amendments or Subsequent Shelf Registrations. If the Initial Shelf
Registration (except as provided in Section 2(b)) or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period for a reason other than because of the sale of all
of the Registrable Securities covered thereby, subject to Section 2(b),
the Company shall use its best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall,
within 60 days of such cessation of effectiveness, amend such Initial
Shelf Registration or Subsequent Shelf Registration in a manner
reasonably calculated to obtain the withdrawal of the order suspending
the effectiveness thereof, or shall file an additional "shelf"
registration statement pursuant to Rule 415 covering all of such
Registrable Securities which remain unsold. (Each of the Initial Shelf
Registration and the Subsequent Shelf Registrations is referred to
individually herein as a "Shelf Registration" and collectively as the
"Shelf Registrations.")
d. Effectiveness Period. The Company shall use its best efforts to
keep the Shelf Registration (including the Initial Shelf Registration and
any Subsequent Shelf Registration) continuously effective under the
Securities Act until the earlier to occur of the fourth anniversary of
the date on which the Initial Shelf Registration became effective (the
"Effectiveness Period"), or the date on which all Registrable Securities
covered by the Initial Shelf Registration have been sold; provided,
however, that the Effectiveness Period shall be extended commensurate
with any period during which a Shelf Registration which previously has
been declared effective by the Commission no longer is in effect as
required by this Agreement, or during which sales have been suspended
pursuant to Section 5 or Section 7(g) hereof. If a Subsequent Shelf
Registration is filed, pursuant to Section 2(b) or 2(c) hereof, the
Company shall use its best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as reasonably practicable
after such filing and to keep such Registration Statement continuously
effective for a period after such effectiveness equal to the
Effectiveness Period, less the aggregate number of days during which the
Initial Shelf
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Registration or any Subsequent Shelf Registration was previously in
effect. The intent of this provision is that the Shelf Registration
(including the Initial Shelf Registration and any Subsequent Shelf
Registration) shall be in effect for a number of days, in the aggregate,
equal to four years; provided that a Shelf Registration shall not be
required to be maintained in effect after all of the Registrable
Securities have been sold thereunder or otherwise distributed such that
they are no longer deemed to be Registrable Securities hereunder.
e. Option to Extend Initial Shelf Registration. In lieu of filing the
Subsequent Shelf Registration required under Section 2(b) hereof, the
Company may, in its sole discretion and if permitted by applicable law,
keep the Initial Shelf Registration continuously effective for the
remainder of the Effectiveness Period or, if earlier, until all of the
Registrable Securities eligible to be included in the Shelf Registrations
have been sold hereunder such that they are no longer Registrable
Securities hereunder.
3. Demand Registrations.
a. Demand Rights. After the termination of the Effectiveness Period,
so long as there are "Registrable Securities" hereunder, upon written
notice to the Company from one or more Holders (the "Initiating Holders")
of Registrable Securities holding in the aggregate 25% of Registrable
Securities then outstanding, requesting that the Company effect, pursuant
to this Section 3, the registration of such Initiating Holders'
Registrable Securities under the Securities Act (which notice shall
specify the Registrable Securities so requested to be registered, the
proposed amounts thereof and the intended method or methods of
distribution by such Initiating Holders (including whether the proposed
offering is to be underwritten), the Company shall promptly (but in any
event within 15 days) give written notice of such requested registration
to all Holders of Registrable Securities, and thereupon the Company shall
use its best efforts to effect the registration under the Securities Act
of: (A) the Registrable Securities that the Initiating Holders have
requested the Company to register, for disposition in accordance with the
intended method or methods of distribution stated in their notice to the
Company; and (B) all other Registrable Securities the Holders of which
shall have made a written request to the Company for registration thereof
(which request shall specify such Registrable Securities and the proposed
amounts thereof) within 15 days after the receipt of such written notice
from the Company, as expeditiously as possible (but in any event shall
file such registration statement within 60 days of the receipt of such
request by the Initiating Holders), all to the extent requisite to permit
the disposition by Holders of the Registrable Securities then
constituting Registrable Securities so to be registered.
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b. Frequency; Duration. The Company shall be obligated to effect only
two registrations pursuant to this Section 3 with respect to all Holders
of Registrable Securities. Notwithstanding the foregoing, the Company
shall not be required to effect a Demand Registration pursuant to this
Section 3: (i) if it shall have so effected a Demand Registration during
the previous seven months; or (ii) during the period starting with the
date 30 days prior to the Company's good faith estimate of the date of
filing of, and ending on the date 90 days following the effective date
of, a registration statement pertaining to an underwritten public
offering for the account of the Company with respect to which Holders
have piggyback rights pursuant to Section 4 hereof; provided, however,
that a Demand Registration shall not be deemed to have been effected for
purposes of Section (3)(b)(i) if the applicable registration statement
has not been declared effective and kept effective until the earlier of
(i) 90 days following the date on which such registration statement was
declared effective and (ii) the sale pursuant to such registration
statement of the Registrable Securities covered thereby; and provided,
further, that in the event a request for registration is refused pursuant
to (ii) above, if the Company then elects not to file a registration
statement or, if a registration statement is filed, the Company elects
not to complete the proposed offering, the Company shall notify in
writing the Holders whose request for registration has been refused
pursuant to clause (ii) above, and such Holders shall have the right,
within 10 days after receiving written notice of the Company's election,
to request the Company to effect the registration of Registrable
Securities for the account of Holders, and such registration shall be
considered a Demand Registration under this Section 3.
c. Inclusion of Other Securities. The Company may include in a Demand
Registration securities held by other Persons who have piggyback
registration rights pursuant to written agreements with the Company;
provided that Registrable Securities shall have absolute priority over
any such other securities in connection with any cutback.
4. Piggyback Registration. If the Company or PSF, at any time prior to the
expiration of the Effectiveness Period when there is not in effect a Shelf
Registration for the Registrable Securities, proposes to register any of its
securities under the Securities Act or, at any time after the expiration of the
Effectiveness Period, proposes to register any of its securities, on any forms
(other than in connection with the registration of securities issued or
issuable pursuant to an employee stock option, stock purchase, stock bonus or
similar plan or dividend reinvestment plan or pursuant to a merger, business
combination, exchange offer or transaction of the type specified in Rule 145(a)
under the Securities Act), whether or not pursuant to registration rights
granted to other holders of its securities and whether or not for sale for its
own account, the Company shall give prompt written notice to all of the Holders
of the Company or PSF's intention to do so and of such Holders' rights (if any)
under this Section 4, which notice, in any event, shall be
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given at least 20 days prior to the filing with the Commission of such
proposed registration. Upon the written request of any Holder receiving notice
of such proposed registration (a "Requesting Holder") made within 15 days after
the receipt of any such notice (or 10 days if the Company states in such
written notice or gives telephonic notice to the relevant security holders,
with written confirmation to follow promptly thereafter, that (i) such
registration will be on Form S-3 and (ii) such shorter period of time is
required because of a planned filing date), which request shall specify the
Registrable Securities intended to be disposed of by such Requesting Holder and
the intended method of such distribution, and the minimum offering price per
unit of Registrable Security at which the Holder is willing to sell its
Registrable Securities, the Company shall, subject to Section 8(b) hereof,
include for registration under the Securities Act all Registrable Securities of
the Requesting Holders; provided that,
i. with respect to a registration of Registrable Securities,
prior to the effective date of the registration statement filed in
connection with such registration, promptly following receipt of
notification by the Company or PSF from the managing underwriter of
the price at which such securities are to be sold, if applicable, the
Company shall so advise each Requesting Holder of such price, and if
such price is below the minimum price which any Requesting Holder
shall have indicated to be acceptable to such Requesting Holder, such
Requesting Holder shall then have the right irrevocably to withdraw
its request to have its Registrable Securities included in such
registration statement, by delivery of written notice of such
withdrawal to the Company within three Business Days of its being
advised of such price, without prejudice to the rights of any Holder
or Holders of Registrable Securities to include Registrable Securities
in any future registration (or registrations) pursuant to this Section
4; and
ii. with respect to a registration of Registrable Securities,
if at any time after giving written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company or PSF shall determine for any reason not to register or to
delay registration of such other securities, the Company may, at its
election, give written notice to such determination to each Requesting
Holder and (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities
in connection with such registration (but not from any obligation of
the Company to pay the Expenses in connection therewith), without
prejudice, however, to the rights of any Holder to include Registrable
Securities in any future registration (or registrations) pursuant to
this Section 4 and (ii) in the case of a determination to delay
registering its other securities, shall be permitted to delay
registering any
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Registrable Securities, for the same period as the delay in
registering such other securities.
No registration effected under this Section 4 shall relieve the Company of its
obligations under Section 2 or 3 hereof.
5. Blackout Periods. With respect to a Shelf Registration filed or to be filed
pursuant to Section 2 hereof or a Demand Registration requested under Section 3
hereof, if the members of the Company shall determine, in its good faith
reasonable judgment, that to maintain the effectiveness of such registration
statement or to permit such registration statement to become effective (or if
no registration statement has yet been filed, to file such registration
statement) would be significantly disadvantageous to the Company's financial
condition, business or prospects ( a "Disadvantageous Condition") in light of
the existence, or in anticipation, of (i) any acquisition of financing activity
involving the Company, or any subsidiary of the Company, including a proposed
public offering or private placement, (ii) an undisclosed material event, the
public disclosure of which could have a material adverse effect on the Company,
(iii) a proposed material transaction involving the Company or a substantial
amount of its assets, or (iv) any other circumstance or condition the
disclosure of which would materially disadvantage the Company, and the
existence of which renders any to be filed, then filed or effective
registration statement inadequate as failing to include material information,
then the Company may, until such Disadvantageous Condition no longer exists
(but not with respect to more than 180 days in the aggregate nor involving more
than 90 consecutive days during any 12-month period) cause such registration
statement to be withdrawn and the effectiveness of such registration statement
to be terminated, suspend the use of the prospectus contained therein, or if no
registration statement has yet been filed, elect not to file such registration
statement. If the Company determines to take any action pursuant to the
preceding sentence, the Company shall deliver a notice to any Holder of
Registrable Securities covered or to be covered under such withdrawn, suspended
or not to be filed registration statement, which indicates that the
registration statement is no longer effective or will not be filed. Upon the
receipt of any such notice, such Holder(s) in the case of an effective
registration statement shall forthwith discontinue their use and any
dissemination of the prospectus contained in such registration statement. If
any Disadvantageous Condition shall cease to exist, the Company shall promptly
notify any Holders, who shall have ceased selling Registrable Securities
pursuant to an effective registration statement as a result of such
Disadvantageous Condition, indicating such cessation. The Company shall, if
any registration statement required to be filed or maintained under this
Agreement has been withdrawn, suspended or not filed, file promptly, at such
time as it in good xxxxx xxxxx appropriate, an amended, supplemented or new
registration statement, as applicable, covering the Registrable Securities that
were covered by such withdrawn registration statement or to be covered by such
unfiled registration statement.
6. Expenses. The Company shall pay all Expenses in connection with any
registration initiated pursuant to Section 2 or 3 hereof, whether or not such
registration shall become effective.
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7. Registration Procedures. If and whenever the Company is required to
effect any registration under the Securities Act as provided in and subject to
the provisions of Sections 2 and 3 hereof, the Company shall, as expeditiously
as possible:
a. expeditiously prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
its reasonable best efforts to cause such registration statement to
become effective; provided, however, that the Company may discontinue
any registration of its securities that are not Registrable Securities
(and, under the circumstances specified in Sections 4 and 7(b) hereof,
its securities that are Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto;
b. prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the offering of all Registrable Securities covered by such
registration statement until such time as all of such Registrable
Securities have been disposed of during the applicable period in
accordance with the method of disposition set forth in such registration
statement or, with respect to a Shelf Registration, the expiration of
the Effectiveness Period;
c. furnish to each seller of Registrable Securities covered by any
registration statement provided for hereunder such reasonable number of
copies of such drafts and final conformed versions of such registration
statement and of each such amendment and supplement thereto (in each
case including all exhibits), such reasonable number of copies of such
drafts and final versions of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, and such other documents, as such seller may
reasonably request in writing;
d. use its best efforts (i) to file such applications and documents to
register or qualify all Registrable Securities and other securities
covered by such registration statement under such other securities or
blue sky laws of such states or other jurisdictions of the United States
of America as the sellers of Registrable Securities covered by such
registration statement shall reasonably request in writing, (ii) to keep
such registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other
action that may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except that the Company shall not
for any such purpose be required to qualify generally to do business
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as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subsection (d) be obligated to be so
qualified, to subject itself to taxation in such jurisdiction or to
consent to general service of process in any such jurisdiction;
e. use its best efforts to cause all Registrable Securities covered by
such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
seller or sellers of Registrable Securities to enable the sellers
thereof to consummate the offering of such Registrable Securities;
f. use its best efforts to obtain and, if obtained, furnish a copy to
each seller of Registrable Securities, and each such seller's
underwriters, if any, of
i. an opinion of counsel for the Company, dated the effective date of
such registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in form and
substance to counsel to the Holders chosen by Holders of a majority
of the aggregate principal amount of Registrable Securities being
registered, and
ii. a "comfort" letter, dated the effective date of such registration
statement (and, if such registration involves an underwritten
offering, dated the date of the closing under the underwriting
agreement) and signed by the independent public accountants who have
certified the Company's financial statements included or
incorporated by reference in such registration statement, reasonably
satisfactory in form and substance to counsel to the Holders chosen
by Holders of a majority of the aggregate principal amount of
Registrable Securities being registered,
in each case, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements and matters
contained in such registration statement, as are customarily covered in
opinions of issuer's counsel and in accountants' comfort letters
delivered to underwriters in underwritten Public Offerings of like
securities;
g. notify the sellers of Registrable Securities (providing, if
requested by any such Persons, confirmation in writing) as soon as
practicable after becoming aware of: (A) the filing of any prospectus
or prospectus supplement of the filing or effectiveness (or anticipated
date of effectiveness) of such registration
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statement or any post-effective amendment thereto; (B) any request by
the Commission for amendments or supplements to such registration
statement or the related prospectus or for additional information; (C)
the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of any
proceedings for such purpose; (D) the receipt by the Company of any
notification with respect to the suspension of the qualification or
registration (or exemption therefrom) of any Registrable Securities for
sale in any jurisdiction in the United States or the initiation or
threatening of any proceeding for such purposes; or (E) the happening of
any event that makes any statement made in such registration statement
or in any related prospectus, prospectus supplement, amendment or
document incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such registration
statement or in any such prospectus, supplement, amendment or other such
document so that it will not contain any 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 the case of any prospectus
in the light of the circumstances under which they were made) not
misleading;
h. otherwise comply with all applicable rules and regulations of the
Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of section 11(a) of the Securities Act and
Rule 158 promulgated thereunder, and furnish to each seller of
Registrable Securities at least three Business Days prior to the filing
thereof a copy of any amendment or supplement to such registration
statement or prospectus;
i. obtain a CUSIP number for all Registrable Securities;
j. enter into customary agreements and take all such other reasonable
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities included in such registration
statement;
k. make every reasonable effort to obtain the withdrawal of any order
or other action suspending the effectiveness of any such registration
statement or suspending the qualification or registration (or exemption
therefrom) of the Registrable Securities for sale in any jurisdiction;
and
l. if any event described in subsection (g) hereto occurs, use its best
efforts to cooperate with the Commission to prepare, as soon as
practicable, any amendment or supplement to such registration statement
or such related prospectus and any other additional
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information, or to take other action that may have been requested by
the Commission.
It shall be a condition precedent to the obligations of the Company to
take action pursuant to this Agreement that the selling Holders furnish to the
Company such information regarding themselves and the Registrable Securities
held by them, and the intended methods of disposition of such securities, as
shall be required to effect the registration and sale of their Registrable
Securities.
In the case of a registration pursuant to this Agreement (including any
registration under Section 4 hereof), each Holder agrees that as of the date
that a final prospectus is made available to it for distribution to prospective
purchasers of Registrable Securities it shall cease to distribute copies of any
preliminary prospectus prepared in connection with the offer and sale of such
Registrable Securities. Each Holder further agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection (g) of this Section 7, such Holder shall forthwith discontinue such
Holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such Holder's receipt
of the copies of the supplemented or amended prospectus contemplated by
subsection (l) of this Section 7 and, if so directed by the Company, shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
8. Underwritten Offerings.
a. Requested Underwritten Offerings. If requested by the underwriters
(if any) in connection with a registration under Section 2 or 3 hereof,
the Company shall enter into a firm commitment underwriting agreement
with such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, a majority of the
Holders whose Registrable Securities are included in such registration,
and the underwriters, and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnification
and contribution to the effect and to the extent provided in Section 10
hereof.
b. Selection of Underwriters. The underwriter or underwriters
of each underwritten offering, if any, of the Registrable Securities to
be registered pursuant to Section 2, 3 or 4 hereof (i) shall be a
nationally recognized underwriter (or underwriters), (ii) shall be
selected by the Holders owning at least a majority of the aggregate
outstanding principal amount of Registrable Securities being sold in any
such underwritten offering and (iii) shall be reasonably acceptable to
the Company (or, with respect to an underwritten offering of securities
of PSF, to PSF).
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16
c. Piggyback Underwritten Offerings; Priority. If the Company or PSF
proposes to register any of its securities under the Securities Act
(whether pursuant to registration rights afforded to holders of
securities other than Registrable Securities or otherwise) and the
Holders exercise piggyback rights pursuant to Section 4 hereof with
respect to such registration and any such securities are to be
distributed by or through one or more underwriters, the Company shall use
reasonable efforts to arrange for such underwriters to include all of the
Registrable Securities to be offered and sold by the Holders thereof
among the securities of the Company to be distributed by such
underwriters; provided, that, notwithstanding any other provision herein
contained, if the managing underwriter of such underwritten offering
shall advise the Company in writing (with a copy to the Holders) that the
inclusion of the Registrable Securities in such registration would
materially and adversely affect the success of such offering, then the
number of Registrable Securities to be included shall be reduced, pro
rata, to the extent necessary to reduce the Registrable Securities to the
number recommended by the underwriter (which amount may be zero);
provided, however, that in the event that any holders of securities other
than Registrable Securities holding piggyback rights with respect to any
registration have invoked such rights with respect to a registration as
to which the holders of Registrable Securities have also requested
inclusion pursuant to Section 4 hereof, and the underwriter does not
object to the inclusion of the Registrable Securities on the basis of the
character of such securities, but only on the volume of securities to be
included, any cutback of the Registrable Securities shall be no less
favorable to the Registrable Securities than on a pro rata basis with any
cutback of any such other securities holding piggyback rights.
d. Holders of Registrable Securities to be Parties to Underwriting
Agreement. The Holders of Registrable Securities to be distributed by
underwriters in an underwritten offering contemplated by subsections (a)
or (b) of this Section 8 shall be parties to the underwriting agreement
between the Company (or PSF) and such underwriters and any such Holder,
at its option, may require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to
and for the benefit of the underwriters be made to and for the benefit of
such Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. No such Holder
shall be required to make any representations or warranties to or
agreements with the Company, PSF or the underwriters other than
representations, warranties or agreements regarding such Holder, such
Holder's Registrable Securities and such Holder's intended method of
distribution and indemnification and contribution customary in secondary
offerings to the effect and to the extent provided in Section 10 hereof.
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17
e. Selection of Underwriters for Piggyback Underwritten Offering. The
underwriter or underwriters of each piggyback underwritten offering
pursuant to this Section 8 shall be a nationally recognized underwriter
(or underwriters) selected by the Company or, with respect to any
offering of securities of PSF, selected by PSF.
9. Preparation; Reasonable Investigation.
a. Registration Statements. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant
to this Agreement, the Company shall give each holder of Registrable
Securities registered under such registration statement, the
underwriters, if any, and its respective counsel and accountants the
reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and
shall give each of them such reasonable opportunities to discuss the
business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
necessary, in the reasonable opinion of any such Holders' and such
underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
b. Confidentiality. Each Holder of Registrable Securities shall
maintain the confidentiality of any confidential information received
from or otherwise made available by the Company to such Holder of
Registrable Securities pursuant to this Agreement and identified in
writing by the Company as confidential and shall enter into such
confidentiality agreements as the Company shall reasonably request.
Information that (i) is or becomes available to a Holder of Registrable
Securities from a public source, (ii) is disclosed to a Holder of
Registrable Securities by a third-party source whom the Holder of
Registrable Securities reasonably believes has the right to disclose such
information or (iii) is or becomes required to be disclosed by a Holder
of Registrable Securities by law, including, but not limited to,
administrative or court orders, shall not be deemed to be confidential
information for purposes of this Agreement; provided, however, that to
the extent sufficient time is available prior to such disclosure being
required to be made pursuant to clause (iii) hereof, the Holders of
Registrable Securities shall promptly notify the Company of any request
for disclosure and any proposed disclosure pursuant to such clause (iii).
The Holders of Registrable Securities shall not grant access, and the
Company shall not be required to grant access, to information under this
Section 9 to any Person who will not agree to maintain the
confidentiality (to the same extent a Holder is required to maintain the
confidentiality) of any confidential information received from or
otherwise made available to it by the Company or
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the holders of Registrable Securities under this Agreement and identified
in writing by the Company as confidential.
10. Indemnification.
a. Indemnification by the Company. In connection with any registration
statement filed by the Company (or any subsidiary) pursuant to this
Agreement, the Company shall, and hereby agrees to, indemnify and hold
harmless, each Holder of any Registrable Securities covered by such
registration statement and each other Person who participates as an
underwriter in the offering or sale of such securities and each other
Person, if any, who "controls" such Holder or any such underwriter, and
their respective directors, officers and partners within the meaning of
section 15 of the Securities Act and section 20 of the Exchange Act
(each, a "Company Indemnitee" for purposes of this Section 10(a)),
against any losses, claims, damages, liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof and
whether or not such indemnified party is a party thereto), joint or
several, and expenses, including, without limitation, the reasonable
fees, disbursements and other charges of legal counsel and reasonable
out-of-pocket costs of investigation, to which such Company Indemnitee
may become subject under the Securities Act or otherwise (collectively, a
"Loss" or "Losses"), insofar as such Losses arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities
were registered pursuant to this Agreement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto (collectively, "Offering Documents"), or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
in the light of the circumstances in which they were made not misleading;
provided that the Company shall not be liable in any such case to the
extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in such Offering Documents in reliance upon and in conformity with
written information furnished to the Company expressly for use therein;
and provided, further, that the Company shall not be liable to any Person
including any Company Indemnitee who participates in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
Person including any Company Indemnitee, in any such case to the extent
that any such Loss arises out of such Person's failure to send or give a
copy of the final prospectus (including any documents incorporated by
reference therein), as the same may be then supplement or amended, to the
Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of
the sale of Registrable Securities to such person if such statement or
omission was corrected in such final prospectus. Such indemnity shall
remain in full force and effect
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regardless of any investigation made by or on behalf of such Company
Indemnitee and shall survive the transfer of such securities by such
Company Indemnitee.
b. Indemnification by the Offerors and Sellers. In connection with any
registration statement filed by the Company (or PSF) pursuant to this
Agreement in which a Holder has registered for sale Registrable
Securities, each such Holder of Registrable Securities shall, severally,
but not jointly, and hereby agrees to, indemnify and hold harmless the
Company, PSF and each of its respective directors, officers, members and
partners, each other Person who participates as an underwriter in the
offering or sale of such securities, each other Person, if any, who
controls the Company, such subsidiary, any such underwriter and such
underwriter's directors, officers, stockholders and partners (each a
"Holder Indemnitee" for purposes of this Section 10(b)), against all
Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents (or any document incorporated by reference therein) or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
in the light of circumstances in which they were made not misleading, if
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company or such subsidiary expressly for use
therein; provided, however, that the liability of such indemnifying party
under this Section 10(b) shall be limited to the amount of the net
proceeds received by such indemnifying party in the offering giving rise
to such liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Holder
Indemnitee and shall survive the transfer of such securities by such
Holder.
c. Notices of Losses, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving
a Loss referred to in the preceding subsections of this Section 10, such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of
this Section 10, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such Loss,
to assume and control the defense thereof, in each case at its own
expense, jointly with any other indemnifying party similarly notified, to
the extent that it may
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wish, with counsel reasonably satisfactory to such indemnified party,
and after notice from such indemnifying party of its assumption of the
defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred
by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall be liable
for any settlement of any such action or proceeding effected without its
written consent, which shall not be unreasonably withheld. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such Loss or which requires action on the part of such
indemnified party or otherwise subjects the indemnified party to any
obligation or restriction to which it would not otherwise be subject.
d. Contribution. If the indemnification provided for in this Section
10 shall for any reason be unavailable to an indemnified party under
subsection (a) or (b) of this Section 10 in respect of any Loss, then, in
lieu of the amount paid or payable under subsection (a) or (b) of this
Section 10, the indemnified party and the indemnifying party under
subsection (a) or (b) of this Section 10 shall contribute to the
aggregate Losses (including legal or other expenses reasonably incurred
in connection with investigating the same) (i) in such proportion as is
appropriate to reflect the relative fault of the Company (or its
subsidiary, as applicable) and the prospective sellers of Registrable
Securities covered by the registration statement which resulted in such
Loss or action in respect thereof, as well as any other relevant
equitable considerations, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as shall
be appropriate to reflect the relative benefits received by the Company
or its subsidiary, on the one hand, and such prospective sellers, on the
other hand, from their sale of Registrable Securities; provided that for
purposes of this clause (ii), the relative benefits received by the
prospective sellers shall be deemed not to exceed the amount received by
such sellers. No Person guilty of fraudulent misrepresentation (within
the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligations, if any, of the selling holders of
Registrable Securities to contribute as provided in this subsection (d)
are several in proportion to the relative value of their respective
Registrable Securities covered by such registration statement and not
joint. In addition, no Person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or Loss
effected without such Person's consent.
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e. Other Indemnification. The Company and, in connection with any
registration statement filed by the Company pursuant to Section 2, each
Holder shall, and, in connection with any registration statement filed by
the Company pursuant to Section 3 or 4, each Holder who has registered
for sale Registrable Securities, shall, with respect to any required
registration or other qualification of securities under any Federal or
state law or regulation of any governmental authority other than the
Securities Act, indemnify Holder Indemnitees and Company Indemnities,
respectively, against Losses, or, to the extent that indemnification
shall be unavailable to a Holder Indemnitee or Company Indemnitee in a
manner similar to that specified in the preceding subsections of this
Section 10 (with appropriate modifications).
f. Indemnification Payments. The indemnification and contribution
required by this Section 10 shall be made by periodic payments of the
amount thereof during the course of any investigation or defense, as and
when bills are received or any Loss is incurred.
11. Registration Rights to Others.
If the Company shall at any time hereafter provide to any holder of any
securities of the Company rights with respect to the registration of such
securities under the Securities Act or the Exchange Act, such rights shall not
be in conflict with or adversely affect any of the rights provided in this
Agreement to the holders of Registrable Securities.
12. Adjustments Affecting Registrable Securities.
The Company shall not effect or permit to occur any combination,
subdivision or reclassification of Registrable Securities that would materially
adversely affect the ability of the Holders to include such Registrable
Securities in any registration of its securities under the Securities Act
contemplated by this Agreement.
13. Rule 144 and Rule 144A.
The Company hereby agrees that (i) at any time it is not subject to the
requirements of section 13 or Section 15(d) of the Exchange Act and there
remain outstanding any Registrable Securities, (A) it shall make available to
any Holder upon written request such information as may be required under Rule
144(A)(d)(4) to permit resales of such Registrable Securities pursuant to Rule
144A under the Securities Act and (B) it shall make publicly available such
information concerning the Company specified in paragraphs (a)(5)(i) through
and including (a)(5)(xiv) and in paragraph (a)(5)(xvi) of Rule 15c2-11 under
the Exchange Act to permit resales of such Registrable Securities pursuant to
Rule 144 under the Securities Act; and (ii) during such times the Company is
subject to the requirements of section 13 or section 15(d) of the Exchange Act
and there remain outstanding any Registrable Securities, it shall timely file
the periodic and other reports referred to in paragraph (c)(1) of Rule 144 to
permit resales of such Registrable Securities pursuant to Rule 144 under the
Securities Act.
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Without limiting the generality of the preceding paragraph, the Company
hereby agrees to take all such further actions as any Holder of Registrable
Securities reasonably may request, to the extent required to enable such Holder
to resell its Registrable Securities without registration under the Securities
Act within the limitation of the exemptions therefrom provided by Rule 144A and
Rule 144 under the Securities Act, as such Rules may be amended from time to
time, or any similar Rule or Regulation hereafter promulgated by the
Commission. Upon the reasonable request of any Holder of Registrable
Securities, the Company shall deliver to such Holder written notice as to
whether it has complied with such informational and other requirements.
14. Amendments and Waivers.
Except as otherwise provided herein, 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 unless the Company shall have
obtained the prior written consent of the Holders of at least 66 2/3% of the
aggregate Registrable Securities affected by such amendment, modification or
waiver.
15. Nominees for Beneficial Owners.
In the event that any Registrable Security is held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election in
writing delivered to Company, be treated as the Holder of such Registrable
Security for purposes of any request or other action by any Holder or Holders
pursuant to this Agreement or any determination of the number or percentage of
principal amount of Registrable Securities held by any Holder or Holders
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
16. Assignment.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns including any successor-by-merger of the Company. Any Holder may
assign to any permitted transferee of its Registrable Securities holding
Registrable Securities its rights and obligation under this Agreement, provided
that such transferee shall agree in writing with the parties hereto prior to
the assignment to be bound by this Agreement as if it were an original party
hereto, whereupon such assignee shall for all purposes be deemed to be a Holder
under this Agreement.
17. Calculation of Percentage of Principal Amount of Registrable Securities.
For purposes of this Agreement, all references to an aggregate amount of
Registrable Securities or a percentage thereof shall be calculated based upon
the aggregate Registrable Securities outstanding at the time such calculation
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is made and shall exclude any Registrable Securities owned by the Company or
any subsidiary of the Company.
18. Miscellaneous.
a. Further Assurances. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be
reasonably required or desirable to carry out the provisions of this
Agreement and the transactions contemplated hereby.
b. Headings. The Headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or
construction of any provisions hereof.
c. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to any of its securities that contain
provisions that conflict with the provisions hereof in any material
respect.
d. Remedies. Each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this
Agreement and the Company hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
e. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to
the subject matter hereof, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
undertakings between the parties hereto with respect to the subject
matter hereof.
f. Notices. Any notices or other communications to be given hereunder
by any party to another party shall be in writing, shall be
delivered personally, by telecopy, by certified or registered mail,
postage prepaid, return receipt requested, or by Federal Express or
other comparable delivery service, to the address of the party set forth
on Schedule I hereto or to such other address as the party to whom
notice is to be given may provide in a written notice to the other
parties hereto, a copy of which shall be on file with the Secretary of
the Company. Notice shall be effective when delivered if given
personally, when receipt is acknowledged if telecopied, three days after
mailing if given by registered or certified mail as described above, and
one business day after deposit if given by Federal Express or comparable
delivery service.
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g. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made to be performed entirely in such State, without regard
to principles of conflicts of law. The Company and the parties each
hereby irrevocably submit to the jurisdiction of any New York or any
Federal Court sitting in the City of New York in respect of any suit,
action or proceeding arising out of or relating to this Agreement, and
each irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Nothing herein shall affect the right of any party to serve process in
any manner permitted by law or to commence legal proceedings or
otherwise proceed against the Company in any other jurisdiction.
h. Severability. If one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
in any way affected or impaired thereby, and the provision held to be
invalid, illegal or unenforceable shall be reformed to the minimum
extent necessary, and in a manner as consistent with the purposes
thereof as is practicable, so as to render it valid, legal and
enforceable, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted
by law.
i. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the Company has executed this New LLC Interests
Registration Rights Agreement as of the date first above written.
PSF HOLDINGS, L.L.C.
By /s/ X. X. Xxxxxxxxx
------------------------------
Name:
Title:
26
SCHEDULE I
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