EXHIBIT 99.8
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is entered into as
of the 29th day of October 2002 (this "Agreement"), by and between OVERHILL
FARMS, INC., a Nevada corporation (the "Company"), and XXXXXX XXXXXXXXX CAPITAL
PARTNERS II, L.P., a California limited partnership ("LLCP" or the "Purchaser").
R E C I T A L S
A. The Company, OVERHILL CORPORATION (formerly known as Polyphase
Corporation and to be known from and after the effective date of the Spin-Off as
Treecon Resources, Inc.), a Nevada corporation, Overhill L.C. Ventures, Inc. and
the Purchaser entered into that certain Securities Purchase Agreement dated as
of November 24, 1999 (as amended prior to the date hereof, the "Original
Securities Purchase Agreement").
B. In connection with the initial execution and delivery of the
Original Securities Purchase Agreement, the Company and LLCP entered into that
certain Registration Rights Agreement dated as of November 24, 1999 (the
"Original Registration Rights Agreement").
C. Concurrently herewith, the Company, the entities from time to time
parties thereto as Guarantors and LLCP are entering into that certain Amended
and Restated Securities Purchase Agreement dated of even date herewith (as
amended from time to time, the "Securities Purchase Agreement") pursuant to
which, among other things, (a) the parties thereto are amending and restating
the Original Securities Purchase Agreement, the Original Note and the Original
Warrant and (b) at the request of the Company, LLCP is consenting to the
Spin-Off Related Matters, all on the terms and subject to the conditions set
forth therein.
D. It is a condition precedent to the effectiveness of the Securities
Purchase Agreement and the Note and LLCP's consent to the Spin-Off Related
Matters that the Company affirm, amend and restate the Original Registration
Rights Agreement, all on the terms and subject to the conditions set forth
herein.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby amend and
restate the Original Registration Rights Agreement as follows:
1. DEFINITIONS. Unless otherwise indicated, all capitalized terms used in the
Agreement shall have the respective meanings ascribed to them in the Original
Registration Rights Agreement or the Securities Purchase Agreement, as the case
may be. The rules of interpretation and construction specified in Sections 1.2
through 1.6 of the Securities
Purchase Agreement shall likewise govern the interpretation and construction of
this Agreement. The following terms shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
successor agency.
"Common Stock" shall mean the Common Stock, $.01 par value per share, of
the Company.
"Company" shall have the meaning set forth in the preamble.
"Demanding Holder" shall mean LLCP only or, if LLCP is not the holder of a
majority of the Registrable Securities outstanding at any time, the holders of a
majority of the Registrable Securities outstanding at such time.
"Demand Registration" shall have the meaning specified in Section 2.1(a).
"Indemnified Party" shall have the meaning specified in Section 4.3.
"Indemnifying Party" shall have the meaning specified in Section 4.3.
"LLCP" or "Purchaser" shall have the meaning specified in the preamble.
"LLCP Indemnified Party" shall have the meaning specified in Section 4.1.
"Maximum Number of Shares" shall have the meaning specified in Section
2.1(d).
"Piggy-Back Registration" shall have the meaning specified in Section
2.2(a).
"Register," "registered" and "registration" shall mean a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act and the applicable rules and regulations
thereunder, and such registration statement becoming effective.
"Registrable Securities" shall mean (i) any and all shares of Common Stock
(including any Warrant Shares) issued or issuable upon exercise of any Warrant
(including the November 1999 Warrant and the Fifth Amendment Warrant), (ii) any
shares of Common Stock issued or issuable upon conversion of any shares of
Series A Preferred Stock owned or held by LLCP and (iii) any other shares of
Common Stock acquired by LLCP after the date hereof, whether by purchase, by
exercise, exchange or conversion of any Option Rights or otherwise. The term
"Registrable Securities" shall also include any shares of Common Stock issued or
issuable to LLCP (or its affiliates) as a dividend on, or other distribution
with respect to, any of the securities described in clauses (i) through (iii)
above (whether in connection with any stock dividend, stock split,
recapitalization, merger, consolidation or otherwise) and any other securities
issued or issuable in exchange for, or in replacement of, any of the securities
described in clauses (i) through (iii) above. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
registration statement covering such securities shall have been declared
effective under the Securities Act and such securities shall have been sold
pursuant to such registration
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statement; (ii) such securities shall have been distributed to the public
pursuant to Rule 144 or Rule 144A (or any successor provisions) under the
Securities Act or (iii) such securities shall have ceased to be outstanding.
"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of its
Common Stock (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another entity).
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Underwriter" shall mean a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"Warrant Shares" shall have the meaning set forth in the Securities
Purchase Agreement. The holder of the Warrant or any portion thereof shall be
deemed to be the holder of the Warrant Shares issuable upon exercise of the
Warrant.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
(a) Request for Registration. At any time and from time to time,
the Demanding Holder may make a written request for registration under the
Securities Act of all or part of its Registrable Securities (a "Demand
Registration"). Any such request for a Demand Registration shall specify the
number of shares of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. Upon any such request, the Demanding Holder
shall be entitled to have its Registrable Securities included in the Demand
Registration, subject to Section 2.1(d) and the provisos set forth in Section
3.1(a). The Company shall not be obligated to effect more than two (2) Demand
Registrations with respect to the Warrant Shares under this Section 2.1(a).
(b) Effective Registration. Except in the case of a withdrawal
governed by the last sentence of Section 2.1(e), a registration will not count
as a Demand Registration until the Registration Statement covering the
Registrable Securities that are the subject of such Demand Registration shall
have been declared effective and the Company shall have complied with all of its
obligations under this Agreement with respect thereto; provided, however, that,
after such Registration Statement has been declared effective, if the offering
of Registrable Securities pursuant to such Demand Registration is interfered
with by any stop order, injunction or other order or requirement of the
Commission or any other Governmental Authority, such Demand Registration will be
deemed not to have become effective during the period of such interference.
(c) Underwritten Offering. If a Demanding Holder so elects, the
offering of Registrable Securities pursuant to a Demand Registration shall be in
the form of an
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underwritten offering. The Demanding Holder may select one or more investment
banking firms to act as the managing Underwriter or Underwriters in connection
with such offering and may select any additional managers to be used in
connection with such offering.
(d) Reduction of Offering. If the managing Underwriter or
Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holder, in writing, that the dollar amount
or number of shares of Registrable Securities which the Demanding Holder desire
to sell, taken together with all other shares of Common Stock or other
securities which the Company desires to sell and the shares of Common Stock, if
any, as to which registration has been requested pursuant to the piggy-back
registration rights, if any, which other shareholders of the Company desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method or the probability of success of such
offering (the "Maximum Number of Shares"), then the Company shall include in
such registration:
(i) first, the Registrable Securities as to which
Demand Registration has been requested by the Demanding Holder (pro rata in
accordance with the number of shares of Registrable Securities held by each
Demanding Holder, regardless of the number of shares of Registrable
Securities which such Demanding Holder has requested be included in such
registration) that can be sold without exceeding the Maximum Number of
Shares;
(ii) second, to the extent the Maximum Number of Shares
has not been reached under the foregoing clause (i), the shares of Common
Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares;
(iii) third, to the extent the Maximum Number of Shares
has not been reached under the foregoing clauses (i) and (ii) above, the
shares of Common Stock for the account of other Shareholders of the Company
that the Company is obligated to register (to be allocated among the
Persons requesting inclusion in such registration pursuant to such
agreements pro rata in accordance with the number of shares of Common Stock
with respect to which such Persons has the right to request such inclusion
under such agreements, regardless of the number of shares which such Person
has actually requested be included in such registration) that can be sold
without exceeding the Maximum Number of Shares; and
(iv) fourth, to the extent the Maximum Number of Shares
has not been reached under the foregoing clauses (i), (ii) and (iii) above,
the shares of Common Stock that other shareholders desire to sell that can
be sold without exceeding the Maximum Number of Shares.
(e) Withdrawal. (i) If the Demanding Holder (or any one of them)
disapproves of the terms of any proposed underwritten public offering or is not
entitled to include all of its Registrable Securities in any such offering, (ii)
the Company takes or omits to take certain action that adversely affects the
registration process or such offering or (iii) there shall occur any adverse
market conditions of the type that is customarily found in
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underwriting or similar purchase agreements relating to public offerings and
which may be relied upon by Underwriters or purchasers to terminate such
underwriting or purchase agreement, the Demanding Holder (or any of them) may
elect to withdraw their Registrable Securities from such offering by giving
written notice to the Company of its request to withdraw prior to effectiveness
of the Registration Statement. If the Demanding Holder (or any one of them)
withdraws from any proposed offering for any such reason or reasons, the
withdrawing Demanding Holder shall not be obligated to pay any of the expenses
incurred in connection with such Registration Statement. In addition, the
Demanding Holder (or any one of them) may, by written notice furnished to the
Company prior to the effective date of a Registration Statement, withdraw from
any proposed offering relating to a Demand Registration for any reason (other
than those set forth in clauses (i) through (iii) above) and, in such event, the
withdrawing Demanding Holder shall be obligated to pay its pro rata share (based
upon the number of Registrable Securities to be included in such Registration
Statement) of the expenses incurred in connection with such Registration
Statement and such Demand Registration shall count as a Demand Registration for
purposes of Section 2.1(a).
2.2 Piggy-Back Registration.
(a) Piggy-Back Rights. If at any time the Company proposes to
file a Registration Statement under the Securities Act with respect to an
offering of equity securities, or securities convertible into or exercisable or
exchangeable for, equity securities, by the Company for its own account or by
shareholders of the Company for their own account (or by the Company and by
shareholders of the Company) other than a Registration Statement (i) on Form S-4
or S-8 (or any substitute or successor form that may be adopted by the
Commission), (ii) filed in connection with any employee stock option or other
benefit plan, (iii) for an exchange offer or offering of securities solely to
the Company's existing shareholders or (iv) for a dividend reinvestment plan),
then the Company shall (x) give written notice of such proposed filing to the
holders of Registrable Securities as soon as practicable but in no event less
than thirty (30) days before the anticipated filing date, which notice shall
describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing
Underwriter or Underwriters, if any, of the offering; and (y) offer to the
holders of Registrable Securities in such notice the opportunity to register
such number of shares of Registrable Securities as such holders may request in
writing within fifteen (15) days following receipt of such notice (a "Piggy-Back
Registration"). The Company shall cause such Registrable Securities to be
included in such registration and shall use its best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof.
(b) Reduction of Offering. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an underwritten
offering of shares for the Company's account advises the Company and the holders
of Registrable Securities in writing that the dollar amount or number of shares
of Common Stock which the Company desires to sell, taken together with the
Registrable Securities as to which registration has
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been requested hereunder and the shares of Common Stock, if any, as to which
registration has been requested pursuant to the piggy-back registration rights
which other shareholders of the Company desire to sell, exceeds the Maximum
Number of Shares, then the Company shall include in such registration:
(i) first, the shares of Common Stock or other
securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares;
(ii) second, to the extent the Maximum Number of Shares
has not been reached under the foregoing clause (i) above, the Registrable
Securities as to which registration has been or may be requested under this
Section 2.2; and
(iii) third, to the extent the Maximum Number of Shares
has not been reached under the foregoing clauses (i) and (ii) above, the
shares of Common Stock, if any, as to which registration has been requested
pursuant to the piggy-back registration rights which such other
shareholders desire to sell that can be sold without exceeding the Maximum
Number of Shares.
(c) Withdrawal. Any holder of Registrable Securities may elect
to withdraw such holder's request for inclusion of Registrable Securities in any
Piggy-Back Registration by giving written notice to the Company of such request
to withdraw prior to the effectiveness of the Registration Statement. The
Company may also elect to withdraw a Registration Statement at any time prior to
the effectiveness of the Registration Statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back Registration as
provided in Section 3.3.
2.3 Registrations on Form S-3. Notwithstanding anything to the contrary,
LLCP (or the other holders of Registrable Securities) may at any time request in
writing that the Company register the resale of any or all of its Registrable
Securities on a Registration Statement on Form S-3 (or any similar short-form
registration which may be available at such time) (a "Form S-3") if the Company
is then eligible to use such Form. Upon receipt of such written request for
registration of Registrable Securities on Form S-3, the Company will promptly
give written notice of the proposed registration to all other holders of
Registrable Securities, if any, and, as soon as practicable thereafter, effect
the registration of all or such portion of such holder's or holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other holder or holders joining in such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company. The Company shall use its
best efforts to maintain each Form S-3 under this Section 2.3 effective for the
longer of (a) sixty (60) days and (b) until the Registrable Securities covered
thereby have been sold. Registrations effected pursuant to this Section 2.3
shall not be counted as a Demand Registration effected pursuant to Section 2.1.
2.4 Purchase (and Exercise) of the Warrant by the Underwriters.
Notwithstanding any other provision of this Agreement to the contrary, in
connection with any Demand Registration or Piggy-Back Registration which is to
be an underwritten
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offering, to the extent all or any portion of the Registrable Securities to be
included in such registration consist of shares of Common Stock issuable upon
exercise of the Warrant or any portion thereof, the holders of such Registrable
Securities may require that the Underwriter or Underwriters purchase (and
exercise) the Warrant or any portion thereof rather than require the holders of
the Registrable Securities to exercise the Warrant or portion thereof in
connection with such registration, unless the Underwriters inform such holders
that such a purchase and exercise of the Warrant will materially and adversely
affect the proposed offering. The Company shall take all such action and provide
all such assistance as may be reasonably requested by the holders of Registrable
Securities to facilitate any such purchase (and exercise) of the Warrant agreed
to by the Underwriter or Underwriters, including, without limitation, issuing
the Common Stock issuable upon the exercise of the Warrant or any portion
thereof to be issued within such time period as will permit the Underwriters to
make and complete the distribution contemplated by the underwriting.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. If and whenever the Company is required to
effect the registration of any Registrable Securities pursuant to Section 2, the
Company shall use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof as expeditiously as practicable, and in connection with any such
request:
(a) Filing Registration Statement. The Company shall, as
expeditiously as possible, prepare and file with the Commission, within sixty
(60) days after receipt of a request for a Demand Registration pursuant to
Section 2.1, a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof,
and shall use its best efforts to cause such Registration Statement to become
and remain effective for the period required by Section 3.1(c); provided,
however, that the Company shall have the right to defer such registration for up
to sixty (60) days if the Company shall furnish to the holders a certificate
signed by the Chief Executive Officer of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its shareholders for such Registration Statement
to be effected at such time; provided further, however, that in the event the
Company elects to exercise such right with respect to any registration, it shall
not have the right to exercise such right again prior to the date which is
twelve (12) months after the date on which the Registration Statement relating
to such deferred registration is declared effective.
(b) Copies. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Registrable Securities included in such registration,
and such holders' legal counsel, copies of such Registration Statement as
proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such Registration
Statement (including each preliminary prospectus), and such other documents as
the holders of Registrable Securities included in such registration or legal
counsel for any such holders
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may request in order to facilitate the disposition of the Registrable Securities
owned by such holders.
(c) Amendments and Supplements. The Company shall prepare and
file with the Commission such amendments, including post-effective 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 in compliance with the provisions of the Securities Act until all
Registrable Securities and other securities covered by such Registration
Statement have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement (which period shall not
exceed the sum of one hundred eighty (180) days plus any period during which any
such disposition is interfered with by any stop order, injunction or other order
or requirement of the Commission or any governmental agency or court) or such
securities have been withdrawn.
(d) Notification. After the filing of a Registration Statement,
the Company shall promptly, and in no event more than two (2) Business Days,
notify the holders of Registrable Securities included in such registration
statement, and confirm such advice in writing: (i) when such Registration
Statement has been filed or amended or supplemented and becomes effective, (ii)
when any post-effective amendment to such Registration Statement becomes
effective, (iii) of any stop order issued or threatened by the Commission (and
the Company shall take all actions required to prevent the entry of such stop
order or to remove it if entered) and (iv) of any request by the Commission for
any amendment or supplement to such Registration Statement or any prospectus
relating thereto or for additional information or of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by
such Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of
filing (and in no event less than three (3) Business Days prior to filing) to
provide such holders and legal counsel with a reasonable opportunity to review
such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
(e) State Securities Laws Compliance. The Company shall use its
best efforts to (i) register or qualify the Registrable Securities covered by
the Registration Statement under such securities or "blue sky" laws of such
jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) cause such Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and
operations of
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the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3.1(e), or
subject itself to taxation in any such jurisdiction.
(f) Agreements for Disposition. The Company shall enter into
customary agreements (including, if applicable, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities. The
representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters shall also be
made to and for the benefit of the holders of Registrable Securities included in
such registration statement. No holder of Registrable Securities included in
such registration statement shall be required to make any representations or
warranties in the underwriting agreement except, if applicable, with respect to
such holder's organization, good standing, authority, title to Registrable
Securities, lack of conflict of such sale with such holder's material agreements
and organizational documents, and with respect to written information relating
to such holder that such holder has furnished in writing expressly for inclusion
in such registration statement.
(g) Cooperation. The President and Chief Executive Officer of
the Company, the Chief Financial Officer of the Company, any Senior Vice
President of the Company and any other members of the management of the Company
shall cooperate fully in any offering of Registrable Securities hereunder, which
cooperation shall include, without limitation, the preparation of the
Registration Statement with respect to such offering and all other offering
materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants and potential investors.
(h) Records. The Company shall make available for inspection by
the holders of Registrable Securities included in such Registration Statement,
any Underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by any
holder of Registrable Securities included in such Registration Statement or any
Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers, directors
and employees to supply all information requested by any of them in connection
with such registration statement.
(i) Opinions and Comfort Letters. The Company shall furnish to
each holder of Registrable Securities included in any Registration Statement a
signed counterpart, addressed to such holder, of (i) any opinion of counsel to
the Company delivered to any Underwriter and (ii) any comfort letter from the
Company's independent public accountants delivered to any Underwriter. In the
event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion
of counsel to the Company to the effect that the Registration Statement
containing such prospectus has been declared effective and that no stop order is
in effect.
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(j) Earnings Statement. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities Act, and
make available to its shareholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
(k) Listing. The Company shall use its best efforts to cause all
Registrable Securities included in any registration to be listed on such
national securities exchange or otherwise designated for trading in the same
manner as similar securities issued by the Company are then listed or designated
or, if no such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Registrable Securities included
in such registration.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.1(d)(iv), each holder of Registrable Securities included in any registration
shall immediately discontinue disposition of such Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated
by Section 3.1(d)(iv), and, if so directed by the Company, each such holder will
deliver to the Company all copies, other than permanent file copies then in such
holder's possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall pay all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1
(except as otherwise provided in the last sentence of Section 2.1(e)), any
Piggy-Back Registration pursuant to Section 2.2 and any registration on Form S-3
pursuant to Section 2.3 and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including (i) all registration and filing fees;
(ii) fees and expenses of compliance with securities or "blue sky" laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv) the
Company's internal expenses (including all salaries and expenses of its officers
and employees); (v) the fees and expenses incurred in connection with the
listing of the Registrable Securities as required by Section 3.1(k); (vi)
National Association of Securities Dealers, Inc. fees, if any; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1(i)); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration; (ix) the cost of
selling stockholder errors and omissions insurance for the benefit of LLCP and
the other holders of Registrable Securities included in the applicable
registration in any amount equivalent to the gross proceeds to be received by
LLCP and such other holders in connection with any registration under Sections
2.1, 2.2 and 2.3, on terms and conditions satisfactory to LLCP, and (x) all fees
and expenses incurred by LLCP in connection with its participation in such
registration, including the fees and expenses of LLCP's and the other holder's
legal counsel, accountants and other experts selected by LLCP. The Company shall
have no obligation to pay any underwriting fees,
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discounts or selling commissions attributable to the Registrable Securities
being sold by the holders of Registrable Securities, which expenses shall be
borne by such holders as to its respective Registrable Securities.
3.4 Information. The holders of Registrable Securities shall provide
such information as reasonably requested by the Company in connection with the
preparation of any registration statement, including amendments and supplements
thereto, in order to effect the registration of any Registrable Securities under
the Securities Act pursuant to Section 2.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless LLCP and each other holder of Registrable Securities, and each of
their respective officers, employees, Affiliates (including Xxxxxx Xxxxxxxxx
Capital Partners, Inc.), directors, partners (general and limited), members,
attorneys and agents, and each Person, if any, who controls LLCP and each other
holder of Registrable Securities (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) (each, an "LLCP Indemnified
Party"), from and against any expenses, losses, judgments, claims, damages or
liabilities, whether joint or several, to which any LLCP Indemnified Party may
become subject insofar as such expense, loss, judgment, claim, damage or
liability arises out of, or based upon, (a) any untrue statement (or alleged
untrue statement) of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained in the Registration Statement, or any amendment or supplement to such
Registration Statement, (b) any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any violation by the Company of the Securities
Act or any rule or regulation promulgated thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration; the Company shall promptly, but in no event more than
five (5) Business Days after request for payment, pay directly or reimburse each
LLCP Indemnified Party for any legal and any other expenses reasonably incurred
by such LLCP Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus, final prospectus, or summary prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by such selling holder and stated to be
specifically for use therein. The Company also shall indemnify any Underwriter
of the Registrable Securities, their officers, affiliates, directors, partners,
members and agents and each Person who controls such Underwriters on
substantially the same basis as that of the indemnification provided above in
this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling
holder of Registrable Securities will, in the event that any Registrable
Securities held by such selling holder as to which any registration is being
effected under the Securities Act pursuant to this Agreement, indemnify and hold
harmless (severally and not jointly) the Company, each of its directors and
officers and each Underwriter (if any), and each other Person, if any, who
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controls such selling holder or such Underwriter within the meaning of the
Securities Act, against any losses, claims, judgments, damages or liabilities,
whether joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained in the Registration Statement, or any amendment or supplement to the
Registration Statement, or arise out of or are based upon any omission to state
a material fact required to be stated therein or necessary to make the statement
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by such
selling holder and stated to be specifically for use therein, and shall, within
five (5) Business Days after a request therefor, reimburse the Company, its
directors and officers, and each such controlling Person for any legal or other
expenses reasonably incurred by any of them in connection with investigation or
defending any such loss, claim, damage, liability or action. Notwithstanding
anything to the contrary, in no event shall any holder of Registrable Securities
be liable or responsible for any amount in excess of the net proceeds actually
received by such holder from the sale of Registrable Securities.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any Person of any written notice of any loss, claim, damage or liability or any
action in respect of which indemnity may be sought pursuant to Section 4.1 or
4.2, such Person (the "Indemnified Party") shall, if a claim in respect thereof
is to be made against any other Person for indemnification hereunder, notify
such other Person (the "Indemnifying Party") in writing of the loss, claim,
judgment, damage, liability or action; provided, however, that the failure by
the Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to
such Indemnified Party hereunder, except to the extent the Indemnifying Party is
actually prejudiced by such failure. If the Indemnified Party is seeking
indemnification with respect to any claim or action brought against the
Indemnified Party, then the Indemnifying Party shall be entitled to participate
in such claim or action, and, to the extent that it wishes, jointly with all
other Indemnifying Parties, to assume the defense thereof with counsel
satisfactory to the Indemnified Party. After notice from the Indemnifying Party
to the Indemnified Party of its election to assume the defense of such claim or
action, the Indemnifying Party shall not be liable to the Indemnified Party for
any legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling Persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if, based upon the written opinion of counsel of such
Indemnified Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party (which consent shall not be unreasonably withheld), consent to entry of
judgment or effect any settlement of any claim or pending or threatened
proceeding in respect of which the
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Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such claim or proceeding.
4.4 Contribution. If the indemnification provided for in the foregoing
Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of
any loss, claim, damage, liability or action referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount 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 Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying 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 such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding anything to
the contrary, in no event shall any holder of Registrable Securities be required
to contribute any amount in excess of the net proceeds actually received by such
holder from the sale of Registrable Securities which gave rise to such
contribution obligation. 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.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 or Rule 144A
under the Securities Act, as such Rules may be amended from time to time, or any
similar Rule or regulation hereafter adopted by the Commission.
5.2 Restrictions on Sale by the Company and Others. The Company agrees
(a) not to effect any sale or distribution of any securities similar to those
being registered in accordance with Section 2.1, or any securities convertible
into or exchangeable or
- 13 -
exercisable for such securities, during the ninety (90) days prior to, and
during the one hundred twenty (120) day period beginning on, the effective date
of any Demand Registration (except as part of such Demand Registration to the
extent permitted by Section 2.1(d)); and (b) that any agreement entered into
after the date hereof pursuant to which the Company issues or agrees to issue
any privately placed securities shall contain a provision under which holders of
such securities agree not to effect any sale or distribution of any such
securities during the periods described in (i) above, in each case including a
sale pursuant to Rule 144 under the Securities Act (except as part of any such
registration, if permitted); provided, however, that the provisions of this
Section 5.2 shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities and shall not prevent the
issuance of securities by the Company under any employee benefit, stock option
or stock subscription plans.
6. MISCELLANEOUS.
6.1 Other Registration Rights.
(a) The Company represents and warrants to LLCP that no Person
has any right to require the Company to register shares of the Company's capital
stock for sale or to include shares of the Company's capital stock in any
registration statement filed by the Company for the sale of shares of capital
stock for its own account or for the account of any other Person.
(b) From and after the date hereof, the Company shall not,
without the prior written consent of LLCP: (i) enter into any agreement granting
any demand registration right (i.e., the right to require the Company to
register the sale of any shares of the Company's capital stock), (ii) enter into
any agreement granting any piggy-back registration right (i.e., the right to
require the Company to register the sale of any shares of the Company's capital
stock in any registration filed by the Company for the sale of shares of capital
stock for its own account or for the account of any other Person) which is
inconsistent with, equal to or superior to any registration rights granted
hereunder or (iii) enter into any agreement that adversely affects the rights
granted to LLCP or the other holders of Registrable Securities.
6.2 Successors and Assigns. The rights and obligations of LLCP under
this Agreement shall be freely assignable in whole or in part. Each such
assignee, by accepting such assignment of the rights of the assignor hereunder,
shall be deemed to have agreed to and be bound by the obligations of the
assignor hereunder. The rights and obligations of the Company hereunder may not
be assigned or delegated.
6.3 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if transmitted by telecopier with
receipt acknowledged, or upon delivery, if delivered personally or by recognized
commercial courier with receipt acknowledged, or upon the expiration of 72 hours
after mailing, if mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
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(i) If to LLCP, to:
Xxxxxx Xxxxxxxxx Capital Partners II, L.P.
c/o Levine Xxxxxxxxx Capital Partners, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(ii) If to any other holder of Registrable Securities
(including any assignee of LLCP), to such holder's
(or assignee's) address as shown on the books of
the Company
(iii) If to the Company, at:
Overhill Farms, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Xx., Esq.
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address or addresses as the Purchaser or the Company, as the
case may be, may specify by written notice given in accordance with this Section
6.3.
6.4 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
- 15 -
6.5 Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
6.6 Waivers and Amendments. No provision of this Agreement may be waived
except by a statement in writing signed by the party against which enforcement
is sought. No amendment, supplement or other modification to this Agreement
shall be effective unless the same shall be in writing and signed by the
parties.
6.7 Remedies. In the event that the Company fails to observe or perform
any covenant or agreement to be observed or performed under this Agreement, LLCP
or any other holder of Registrable Securities may proceed to protect and enforce
its rights by suit in equity or action at law, whether for specific performance
of any term contained in this Agreement or for an injunction against the breach
of any such term or in aid of the exercise of any power granted in this
Agreement or to enforce any other legal or equitable right, or to take any one
or more of such actions. The Company agrees to pay all fees, costs, and
expenses, including, without limitation, fees and expenses of attorneys,
accountants and other experts, and all fees, costs and expenses of appeals,
incurred by LLCP or any other holder of Registrable Securities in connection
with the enforcement of this Agreement or the collection or any sums due
hereunder, whether or not suit is commenced. None of the rights, powers or
remedies conferred under this Agreement shall be mutually exclusive, and each
such right, power or remedy shall be cumulative and in addition to any other
right, power or remedy whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
6.8 Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT
REGARD TO THE CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
6.9 Termination of Rights. This Agreement, and the rights and
obligations of the parties hereunder, shall terminate on the seventh anniversary
of the date hereof; provided, however, that the rights and obligations of the
parties under Section 4 (Indemnification and Contribution) shall expressly
survive the termination hereof.
7. Amendment and Restatement. Effective on and as of the Effective Date, this
Agreement shall supersede the Original Registration Rights Agreement insofar as
the two are inconsistent. However, the execution and delivery of this Agreement
shall not excuse, or constitute a waiver of, any Defaults or Events of Default
under the Original Registration Rights Agreement, it being understood that this
Agreement is not a termination of the Original Registration Rights Agreement,
but is a modification (and, as modified, a continuation) of the Original
Registration Rights Agreement. The Company acknowledges and agrees that the
Original Registration Rights Agreement, as amended and restated hereby, is
affirmed in all respects.
- 16 -
8. Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES
AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER
PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY RELATING TO (a) THIS
AGREEMENT, THE SECURITIES PURCHASE AGREEMENT OR ANY OTHER INVESTMENT DOCUMENT,
INCLUDING ANY PRESENT OR FUTURE AMENDMENT THEREOF, OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY OR RELATED TO THIS AGREEMENT, THE SECURITIES PURCHASE AGREEMENT
OR ANY OTHER INVESTMENT DOCUMENT, OR (b) ANY CONDUCT, ACT OR OMISSION OF THE
PARTIES OR THEIR AFFILIATES (OR ANY OF THEM) WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INVESTMENT DOCUMENTS, INCLUDING ANY PRESENT OR FUTURE AMENDMENT
THEREOF, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHICH
PARTY INITIATES SUCH ACTION, SUIT OR OTHER PROCEEDING; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH ACTION, SUIT OR OTHER PROCEEDING SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO
TRIAL BY JURY.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized representatives as of the date first
written above.
COMPANY
OVERHILL FARMS, INC., a Nevada corporation
By: /s/ XXXXX XXXXX
---------------------------------------
Xxxxx Xxxxx
President and Chief Executive Officer
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and Chief
Financial Officer
LLCP
XXXXXX XXXXXXXXX CAPITAL PARTNERS II,
L.P., a California limited partnership
By: LLCP California Equity Partners II, L.P.,
a California limited partnership,
its General Partner
By: Xxxxxx Xxxxxxxxx Capital Partners, Inc.,
a California corporation, its General
Partner
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxx
Vice President
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