REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of November 18, 1998 by and among AGRILINK FOODS, INC., a
New York corporation (the "COMPANY"), PRO-FAC COOPERATIVE INC., a New York
cooperative corporation (the "PARENT"), and WARBURG DILLON READ LLC and XXXXXXX
XXXXX SECURITIES INC. (the "INITIAL PURCHASERS").
The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers to purchase $200,000,000 aggregate
principal amount of the Company's Old Notes (as defined herein) under the Notes
Purchase Agreement, dated November 13, 1998 (the "PURCHASE AGREEMENT"), by and
among the Company, Parent and the Initial Purchasers. The Old Notes will be
guaranteed on an unsecured senior subordinated basis by the Guarantors (as
defined herein) and will be issued pursuant to the Notes Indenture (as defined
herein).
The parties hereto hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"ACTION" has the meaning set forth in Section 8(c) of this
Agreement.
"AGREEMENT" has the meaning set forth in the introductory
paragraph to this Agreement.
"BROKER-DEALER" means any broker or dealer registered under
the Exchange Act.
"COMMISSION" means the Securities and Exchange Commission.
"CONSUMMATION" of an Exchange Offer means the occurrence of
(i) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously
effective, and the keeping of the Exchange Offer open, for not less than the
minimum period required pursuant to Section 3(b) of this Agreement and (iii) the
delivery by the Company to the registrar under the Notes Indenture of Exchange
Notes in the same aggregate principal amount as the aggregate principal amount
of Old Notes tendered by the Holders thereof pursuant to the Exchange Offer and
not withdrawn. "CONSUMMATE" has a correlative meaning.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in
Section 5 of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" means the Company's 11-7/8% Senior
Subordinated Notes due 2008 to be issued pursuant to the Notes Indenture or an
indenture substantially identical to the Notes Indenture (i) in connection with
the Exchange Offer or (ii) upon the request of any Holder of Old Notes covered
by the Shelf Registration Statement, in exchange for such Old Notes and
evidencing the same debt as the Old Notes and guaranteed on an unsecured senior
subordinated basis by the Guarantors. Exchange Notes, as used herein, includes
the guarantees by the Guarantors.
"EXCHANGE OFFER" means the registration under the Act by the
Issuers of the Exchange Notes pursuant to a Registration Statement pursuant to
which the Issuers offer the Holders of outstanding Old Notes that are Transfer
Restricted Securities the opportunity to exchange such outstanding Old Notes
that are Transfer Restricted Securities held by such Holders for Exchange Notes
in an aggregate principal amount equal to the aggregate principal amount of the
Old Notes that are Transfer Restricted Securities tendered in such exchange
offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"GUARANTORS" means Parent and the Subsidiary Guarantors.
"HOLDER" has the meaning set forth in Section 2(b) of this
Agreement.
"INDEMNIFIED PERSON" has meaning set forth in Section 8(a) of
this Agreement.
"INITIAL PURCHASERS" has the meaning set forth in the
introductory paragraph to this Agreement.
"INTEREST PAYMENT DATE" has the meaning set forth in the Notes
Indenture and the Notes.
"ISSUE DATE" means the date that the Old Notes are purchased
by the Initial Purchasers pursuant to the Purchase Agreement.
"ISSUERS" means the Company together with the Guarantors;
individually, each an "ISSUER".
"LOSSES" has the meaning set forth in Section 8(a) of this
Agreement.
-2-
"NASD" means the National Association of Securities Dealers,
Inc.
"NOTES" means the Old Notes and the Exchange Notes.
"NOTES INDENTURE" means the Notes Indenture, dated as of
November 18, 1998, by and among the Issuers and IBJ Xxxxxxxx Bank & Trust
Company, as trustee (the "TRUSTEE"), pursuant to which the Notes are to be
issued, as such Notes Indenture is amended or supplemented from time to time in
accordance with its terms.
"OLD NOTES" means the Company's 11-7/8% Senior Subordinated
Notes due 2008 to be issued pursuant to the Notes Indenture on the Issue Date,
including the guarantees by the Guarantors.
"PARENT" has the meaning set forth in the introductory
paragraph to this Agreement.
"PARTICIPATING BROKER-DEALER" has the meaning set forth in
Section 6(a) of this Agreement.
"PERSON" means an individual, corporation, limited liability
company, partnership, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government (including
any agency or political subdivision thereof) or other entity of any kind.
"PROSPECTUS" means the prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
and supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
"REGISTRATION DEFAULT" has the meaning set forth in Section 5
of this Agreement.
"REGISTRATION STATEMENT" means any registration statement of
the Issuers relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement that is filed pursuant
to the provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including pre- and
post-effective amendments) and all exhibits and material incorporated by
reference or deemed to be incorporated by reference, if any, therein.
"SHELF FILING DEADLINE" has the meaning set forth in Section
4(a) of this Agreement.
-3-
"SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 4(a) of this Agreement.
"SUBSIDIARY" means, with respect to any Person, any other
Person of which a majority of the equity ownership or the voting securities is
at the time owned, directly or indirectly, by such Person or by one or more
other subsidiaries of such Person or a combination thereof.
"SUBSIDIARY GUARANTORS" means each of Linden Oaks Corporation,
a Delaware corporation, and Xxxxxxx Endeavors, Incorporated, a Washington
corporation.
"TIA" means the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated pursuant thereto, all as in effect on the
date of the Notes Indenture.
"TRANSFER RESTRICTED SECURITIES" means each Note until the
earliest to occur of (i) the date on which each such Old Note has been exchanged
by a person other than a Broker-Dealer for an Exchange Note in the Exchange
Offer, (ii) following the exchange by a Broker-Dealer in the Exchange Offer of
an Old Note for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such Broker-Dealer on or prior to the date of
such sale a copy of the Prospectus (as supplemented or amended) contained in the
Exchange Offer Registration Statement, (iii) the date on which such Note has
been effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Note could be resold
pursuant to Rule 144(k) under the Act.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration in which securities of the Company are sold to an underwriter(s)
for reoffering to the public pursuant to an effective Registration Statement.
SECTION 2. Securities Subject To This Agreement. (a) Transfer
Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "HOLDER")
whenever such Person beneficially owns Transfer Restricted Securities.
SECTION 3. Exchange Offer. (a) Unless the Exchange Offer is
not permitted by applicable law or Commission policy, the Company and Parent
shall, and shall cause each of the Subsidiary Guarantors to, (i) cause to be
filed with the Commission on or prior to 60 days after the Issue Date, an
Exchange Offer Registration Statement under the Act relating to the Exchange
Notes and the Exchange Offer and (ii) use their respective best efforts to cause
such Exchange Offer Registration Statement to be declared effective by the
Commission on or prior to 120 days after the Issue Date. In connection with the
foregoing, the Company and
-4-
Parent shall, and shall cause each of the Subsidiary Guarantors to, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary to cause such Exchange Offer Registration Statement to become
effective, (B) if applicable, file a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act, (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer; provided, however, that
no Issuer shall be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to take any action which would
subject it to general service of process or taxation in any jurisdiction where
it is not so subject; and (D) upon the effectiveness of such Registration
Statement, commence the Exchange Offer and use their respective best efforts to
issue on or prior to 45 days after the date on which such Exchange Offer
Registration Statement is declared effective by the Commission, Exchange Notes
in exchange for all Old Notes tendered prior thereto in the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Exchange Notes to be offered in exchange for the Old Notes that are Transfer
Restricted Securities and, as required hereby, permitting resales of Exchange
Notes held by Broker-Dealers as contemplated by Section 3(c) below. If, after
such Exchange Offer Registration Statement initially is declared effective by
the Commission, the Exchange Offer or the issuance of Exchange Notes under the
Exchange Offer or the resale of Exchange Notes received by Broker-Dealers in the
Exchange Offer as contemplated by Section 3(c) below is interfered with by any
stop order, injunction or other order or requirement of the Commission or any
other governmental agency or court, such Exchange Offer Registration Statement
shall be deemed not to have become effective for purposes of this Agreement
during the period that such stop order, injunction or other similar order or
requirement shall remain in effect.
(b) The Company and Parent shall, and shall cause each of the
Subsidiary Guarantors to, cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company and Parent
shall, and shall cause each of the Subsidiary Guarantors to, cause the Exchange
Offer to comply with all applicable federal and state securities laws. The
Company and Parent shall, and shall cause each of the Subsidiary Guarantors to,
only offer to exchange Exchange Notes for Old Notes in the Exchange Offer. The
Company and Parent shall, and shall cause each of the Subsidiary Guarantors to,
use their respective best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but not less than 20 business days after such effective
date and in no event later than 45 days after such effective date.
(c) The Company and Parent shall, and shall cause each of the
Subsidiary Guarantors to, indicate in a "Plan of Distribution" section contained
in the Prospectus included in the Exchange Offer Registration Statement that any
Broker-Dealer that holds Old
-5-
Notes that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the Company or
any affiliate of the Company), may exchange such Old Notes pursuant to the
Exchange Offer; provided, however, that such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with any resales of
the Exchange Notes received by such Broker-Dealer in the Exchange Offer. Such
"Plan of Distribution" section shall allow the use of such Prospectus by all
Persons subject to the prospectus delivery requirements of the Act, including
Participating Broker-Dealers, and shall also contain all other information with
respect to such resales by Broker-Dealers that the Commission may require to
permit such resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company and Parent shall, and shall cause each of the
Subsidiary Guarantors to, use their respective best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which the
Exchange Offer Registration Statement is declared effective. The Company and
Parent shall, and shall cause each of the Subsidiary Guarantors to, provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day period in order to
facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuers are not required to
file an Exchange Offer Registration Statement or to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any Holder of Transfer Restricted Securities shall
notify the Company within 20 days after the commencement of the Exchange Offer
that such Holder (A) is prohibited by law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus, and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Old Notes (including the Initial Purchasers that
hold Old Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from the Company or one of its affiliates, then the
Company and Parent shall, and shall cause each of the Subsidiary Guarantors to,
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under
the Act, which may be an amendment to the Exchange
-6-
Offer Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT"), on or prior to the earliest to occur of (1) the 60th day after the
date on which the Company determines that the Issuers are not required to file
the Exchange Offer Registration Statement or (2) the 60th day after the date on
which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above (such earliest date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(c) of this Agreement,
and (y) use their respective best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 60th day
after the Shelf Filing Deadline. The Company and Parent shall, and shall cause
each of the Subsidiary Guarantors to, use their respective best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and 6(c) of this
Agreement to the extent necessary to ensure that it is available for resales of
Notes by the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a) and to ensure that it conforms to the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a continuous period of two years following the
date on which such Shelf Registration becomes effective under the Act or such
shorter period that will terminate when all the Notes covered by the Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement or are no longer Transfer Restricted Securities.
(b) Postponement or Suspension of Shelf Registration Statement
under Certain Circumstances. If, notwithstanding their respective best efforts
to cause an Exchange Offer Registration Statement to be declared effective and
to consummate the Exchange Offer pursuant to Section 3(a) of this Agreement, the
Issuers are required to file a Shelf Registration Statement pursuant to Section
4(a) hereof, the Company and Parent may postpone or suspend the filing or
effectiveness of such Shelf Registration Statement (or any amendments or
supplements thereto) (i) if such action is required by applicable law or (ii)
for up to an aggregate of 30 days during any consecutive 365-day period, if such
action is approved by the Boards of Directors of the Company and Parent and is
taken by the Company and Parent in good faith and for valid business reasons
(not including the avoidance of the Company's and Parent's obligations
hereunder), including the premature disclosure of material nonpublic information
which, if disclosed at such time, would be materially harmful to the interests
of the Issuers and their respective shareholders, so long as the Company and
Parent promptly thereafter comply with the requirements of Section 4(a) hereof.
This Section 4(b) shall not affect the Company's obligations to pay Additional
Interest pursuant to Section 5 of this Agreement.
(c) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 15 days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
prospectus included
-7-
in such Shelf Registration Statement. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. Additional Interest. If (i) the Exchange Offer
Registration Statement or the Shelf Registration Statement is not filed with the
Commission on or prior to the date specified for such filing in Section 3(a) or
Section 4(a), respectively, of this Agreement, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in Section 3(a) or Section 4(a), respectively, of this Agreement
(the "EFFECTIVENESS TARGET DATE"), (iii) the Exchange Offer has not been
Consummated within 45 days after the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or usable in connection with resales of Transfer
Restricted Securities during the periods required by this Agreement (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the
Company hereby agrees to pay to each Holder of Transfer Restricted Securities
additional interest ("ADDITIONAL INTEREST") on the principal amount of the Notes
(in addition to the stated interest on the Notes) from and including the date on
which any such Registration Defaults have occurred to but excluding the date on
which all such Registration Defaults have been cured. Additional Interest will
accrue during the first 90-day period immediately following the occurrence of
any Registration Default in an amount equal to $.05 per week (or any part
thereof) per $1,000 principal amount of Notes constituting Transfer Restricted
Securities, and shall increase by an additional $.05 per week (or any part
thereof) per $1,000 principal amount of Notes constituting Transfer Restricted
Securities for each subsequent 90-day period, but in no event shall such amount
exceed $.30 per week (or any part thereof) per $1,000 principal amount of Notes
constituting Transfer Restricted Securities. The Company shall have no
obligation to pay additional Additional Interest in respect of any subsequent
Registration Default relating to any particular Transfer Restricted Securities
so long as the Company continues to accrue Additional Interest with respect to
an earlier Registration Default relating to such particular Transfer Restricted
Securities. All accrued Additional Interest shall be paid by the Company on each
Interest Payment Date in accordance with the provisions applicable to the
payment of interest set forth in the Notes Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Additional Interest with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
-8-
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company and Parent shall, and shall cause each of the
Subsidiary Guarantors to, comply with all of the provisions of Section 6(c)
below, use their respective best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and comply with all of the
following provisions:
(i) If, in the reasonable opinion of counsel to the Company,
there is a question as to whether the Exchange Offer is permitted by
applicable federal law or Commission policy, the Company and Parent
hereby agree to, and hereby agree to cause each of the Subsidiary
Guarantors to, seek a no-action letter or other favorable decision from
the Commission allowing the Issuers to Consummate an Exchange Offer for
such Old Notes. The Company and Parent hereby agree to, and hereby
agree to cause each of the Subsidiary Guarantors to, pursue the
issuance of such a no-action letter or favorable decision to the
Commission staff level. In connection with the foregoing, the Company
and Parent hereby agree to, and hereby agree to cause each of the
Subsidiary Guarantors to, take all such other reasonable actions as are
requested by the Commission or otherwise required in connection with
the issuance of such no-action letter or decision, including without
limitation (A) participating in telephonic conferences with the
Commission staff, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff of such submission. The
Initial Purchasers shall be given prior notice of any action taken by
the Issuers under this clause (i).
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company within the
meaning of the Act, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in
the Exchange Offer and (C) it is acquiring the Exchange Notes in its
ordinary course of business. Holders of Transfer Restricted Securities
shall use their best efforts to cooperate in the Issuers' preparations
for the Exchange Offer.
(iii) The Company, Parent and the Initial Purchasers acknowledge
that the staff of the Commission has taken the position that any
Broker-Dealer that owns Exchange Notes that were received by such
Broker-Dealer for its own account in the Exchange
-9-
Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to be an
"underwriter" within the meaning of the Act and must deliver a
prospectus meeting the requirements of the Act in connection with any
resale of such Exchange Notes. Further, the Company, Parent and the
Initial Purchasers acknowledge that the Initial Purchasers may not
exchange in the Exchange Offer Old Notes representing unsold
allotments resulting from the original offering of the Old Notes.
The Company, Parent and the Initial Purchasers also
acknowledge that it is the Commission staff's current position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligations under the Act in connection
with resales of Exchange Notes for their own accounts (other than a resale of an
unsold allotment resulting from the original offering of the Notes), so long as
the Prospectus otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
Registration Statement is required by this Agreement, the Company and Parent
shall, and shall cause each of the Subsidiary Guarantors to, comply with all the
provisions of Section 6(c) of this Agreement and use their respective best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities and, in
connection therewith, the Company and Parent shall, and shall cause each of the
Subsidiary Guarantors to, as expeditiously as possible, prepare and file with
the Commission a Shelf Registration Statement relating to the registration on
any appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities within the time
periods and otherwise in accordance with the provisions of this Agreement.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit resales of Notes by Broker-Dealers), the
Company and Parent shall, and shall cause each of the Subsidiary Guarantors to:
(i) use their respective best efforts to keep such
Registration Statement continuously effective for the applicable time
period required hereunder and provide all requisite financial
statements (including financial statements of the Parent and, if
required by the Act or any regulation thereunder, financial statements
of the Subsidiary Guarantors) for the period specified in Section 3 or
4 of this Agreement, as applicable;
-10-
upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall promptly notify
the Holders to suspend use of the Prospectus, and the Holders shall
suspend use of the Prospectus and the Holders shall not communicate
non-public information to any third party in violation of the
securities laws until the Issuers have made an appropriate amendment
to such Registration Statement (or caused the Prospectus to be
supplemented by a Prospectus Supplement), in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), the Company and Parent shall, and shall
cause each of the Subsidiary Guarantors to, use their respective best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) subject to clause (iv) of this Section 6(c), prepare and
file with the Commission such pre-effective and post-effective
amendments to such Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period set
forth in Section 3 or 4 of this Agreement, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; subject to clause (iv) of this
Section 6(c), cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act during the applicable time period required
hereunder and to comply fully with the applicable provisions of Rules
424 and 430A under the Act in a timely manner; and comply with the
provisions of the Act and the Exchange Act applicable to the Issuers
with respect to the disposition of all Transfer Restricted Securities
covered by such Registration Statement during such period in accordance
with the intended method or methods of distribution by the sellers of
such securities set forth in such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus;
(iii) advise the underwriter(s), if any, the Initial Purchasers,
in the case of a Shelf Registration Statement, each of the selling
Holders, and, in the case of the Exchange Offer Registration Statement,
each of the Participating Broker-Dealers who have notified the Company
that it will be utilizing the Prospectus in the Exchange Offer
Registration Statement as provided in Section 3(c) hereof, promptly
and, if requested by such Persons, confirm such advice in writing, (A)
when the Prospectus or any prospectus supplement or post-effective
amendment has been filed and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating to such Registration
Statement or Prospectus, (C) of the
-11-
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or preventing
the use of any Prospectus or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement to such Registration Statement or Prospectus,
as the case may be, or any document incorporated by reference in such
Registration Statement or Prospectus untrue, or that requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements in such Registration
Statement or Prospectus not misleading and that, in the case of the
Prospectus, 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 light of the
circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement or preventing the use of
the Prospectus, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and Parent shall,
and shall cause each of the Subsidiary Guarantors to, use their
respective best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish to each of the underwriter(s), if any, the Initial
Purchasers and, in the case of a Shelf Registration Statement, each of
the selling Holders, before filing with the Commission, copies of any
Registration Statement or any Prospectus included in such Registration
Statement or Prospectus or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such underwriter(s), if any, the Initial Purchasers and such Holders
for a period of at least five business days, and the Company and Parent
will not, and will cause each of the Subsidiary Guarantors not to, file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus, as the
case may be (including all such documents incorporated by reference),
to which any underwriter, Initial Purchaser or selling Holder shall
reasonably object within five business days after the receipt of such
Registration Statement or Prospectus;
(v) in connection with any Shelf Registration Statement and,
in the case of Participating Broker-Dealers, any Exchange Offer
Registration Statement, promptly prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus, (A) provide copies of such document to the selling
Holders (including Participating Broker-Dealers, if any) and to the
underwriter(s), if any, (B) make the Company's representatives
reasonably available for discussion of
-12-
such document and other customary due diligence matters; provided that
such discussion and due diligence shall be coordinated on behalf of the
selling Holders (including Participating Broker-Dealers, if any) by one
counsel designated by and on behalf of such selling Holders and (C)
include such information in such document prior to the filing of such
document as such selling Holders or underwriter(s), if any, may
reasonably request;
(vi) make available at reasonable times for inspection by the
selling Holders (including Participating Broker-Dealers, if any), any
underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), if any, at the offices
where normally kept, during reasonable business hours, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors and cause the Company's
and the Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
provided, however, that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by such
persons, unless and to the extent that (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in
connection with the filing of any Registration Statement or the use of
any Prospectus), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to
safeguard such information by such person or (iv) such information
becomes available to such Person from a source other than the Company
or the Guarantors and such source is not bound by a confidentiality
agreement; provided that each such Person agrees that it will, prior to
the disclosure of such information, give notice to the Company and
allow it at its own expense to undertake appropriate action to prevent
disclosure of information deemed confidential;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment, if necessary,
such information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid for Transfer Restricted
Securities and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or
-13-
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment; provided, however, that the Issuers shall not
be required to take any action pursuant to this Section 6(c)(vii) that
would, in the opinion of counsel for the Company, violate applicable
law;
(viii) furnish to each underwriter, if any, the Initial
Purchasers and selling Holders, without charge, at least one conformed
copy of the Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all exhibits filed therewith
and all documents, including exhibits, incorporated therein by
reference that are expressly requested by such persons;
(ix) deliver to each selling Holder, each of the
underwriter(s), if any, and the Initial Purchasers, without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably
request; the Company and Parent hereby consent to the use of the
Prospectus and any amendment or supplement to the Prospectus by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities in accordance with the terms thereof and with U.S. federal
securities laws and Blue Sky laws covered by the Prospectus or any
amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings of securities of this type) and take all such other
reasonable actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all as may be reasonably requested by any Holder of Transfer Restricted
Securities or the underwriter(s), if any, in connection with any sale
or resale of Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company and Parent
shall, and shall cause each of the Subsidiary Guarantors to:
(A) make such representations and warranties to the
Holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of Parent
and the Company and their Subsidiaries (including with respect
to businesses or assets acquired or to be acquired by any of
them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when
customarily requested;
(B) obtain opinions of counsel to the Company and
Parent and updates thereof (which counsel and opinions (in
form, scope and substance) shall
-14-
be reasonably satisfactory to the underwriters, if any, and
special counsel to the Holders of the Transfer Restricted
Securities being sold), addressed to each selling Holder of
Transfer Restricted Securities and each of the underwriters,
if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters, if any, and
special counsel to Holders of Transfer Restricted Securities;
(C) obtain customary "cold comfort" letters and
updates thereof from the independent certified public
accountants of the Company and the Parent (and, if necessary,
any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the
Company or any such subsidiary for which financial statements
and financial data is, or is required to be, included in the
Registration Statement), addressed to each selling Holder of
Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings;
(D) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures
no less favorable to the selling Holders and the underwriters,
if any, than those set forth in Section 8 hereof (or such
other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities covered by such Shelf Registration Statement and
the underwriters, if any); and
(E) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being
sold and the underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant
to clause (A) above and to evidence compliance with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company and Parent.
If at any time the representations and warranties of the
Company and Parent contemplated in clause (x)(A) above cease to be true
and correct, the Company shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by any of them, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification (or exemption from such registration or
qualification) of the Transfer Restricted Securities for offer and sale
under the securities
-15-
or Blue Sky laws of such jurisdictions as the selling Holders and
underwriter(s), if any, may reasonably request and do any and all other
reasonable acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Registration Statement; provided, however, that no
Issuer shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process or to taxation, other than
as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xii) if a Shelf Registration is filed pursuant to Section 4,
cooperate with the selling Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or
Holders may reasonably request;
(xiii) in connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the selling
Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(xiv) use their respective best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers of such
Transfer Restricted Securities or the underwriter(s), if any, to
Consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xi) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D)
of this Agreement shall exist or have occurred, subject to clause (iv)
of this Section 6(c), prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document
incorporated in such Registration Statement or Prospectus by reference
or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Registration
Statement will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading and the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be
-16-
stated therein or necessary to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading;
(xvi) provide a CUSIP or CINS number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Notes Indenture with
certificates for the Transfer Restricted Securities that are in a form
eligible for deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any "qualified independent underwriter" that is required to be
retained in accordance with the rules and regulations of the NASD;
(xviii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission in regards to any
Registration Statement, and make generally available to its
securityholders, as soon as practicable, a consolidated earnings
statement of the Company and its subsidiaries meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or
reasonable best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
the Registration Statement; and
(xix) cause the Notes Indenture or such other indenture for the
Exchange Notes to be qualified under the TIA not later than the
effective date of the first Registration Statement required by this
Agreement, and, if applicable, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Notes
Indenture, if any, as may be required for such Notes Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use
its best efforts to cause the Trustee to execute, all customary
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Notes Indenture to be so qualified in a timely manner.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(c)(iii)(D) of this Agreement, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement, or until it is advised in writing (the "ADVICE") by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense)
-17-
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event that the Company shall give
any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 of this Agreement, as
applicable, shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 6(c)(iii)(D)
of this Agreement to and including the date when each selling Holder covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 6(c)(xv) of this Agreement or, if
no such supplemented or amended Prospectus is required, when it shall have
received the Advice.
SECTION 7. Registration Expenses. (a) All fees and expenses
incident to the Company's and Parent's performance of or compliance with this
Agreement will be borne by the Company and Parent regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including required filings made by
any Initial Purchaser or Holder with the NASD (and, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the NASD)); (ii)
all fees and expenses of compliance with federal securities and state Blue Sky
or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses); (iv) all fees and disbursements of counsel for the
Company and Parent and, subject to Section 7(b) below, all reasonable fees and
disbursements of one counsel for the Holders of Transfer Restricted Securities;
(v) all fees and disbursements of independent certified public accountants of
the Company and the Parent (including the expenses of any comfort letters
required by or incident to such performance); and (vi) all fees and expenses of
the Trustee and any exchange agent and the fees and disbursements of its
counsel.
The Company and Parent will, in any event, bear their
respective internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company and Parent.
Notwithstanding the foregoing or anything in this Agreement to
the contrary, each Holder of Transfer Restricted Securities shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes sold by or on behalf of it.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and Parent will
jointly and severally reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities being tendered in the Exchange Offer and/or
resold pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as
-18-
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx or such other counsel as may be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. Indemnification. (a) Each of the Company and Parent
agrees, jointly and severally, to indemnify and hold harmless (i) the Initial
Purchasers (in their capacity as such), each Holder of Transfer Restricted
Securities and each Participating Broker-Dealer, (ii) each person, if any, who
controls any of the foregoing within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
respective agents, employees, officers and directors of the Initial Purchasers
(in their capacity as such) and the agents, employees, officers and directors of
any Holder or any controlling person (any person referred to in clause (i), (ii)
or (iii) may hereinafter be referred to as an "INDEMNIFIED PERSON") from and
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, "LOSSES") to which they or any of them may become subject under
the Act, the Exchange Act or otherwise, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
preliminary prospectus or Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and Parent will not be
liable in any such case to the extent, but only to the extent, that any such
Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company or Parent by or on
behalf of any Indemnified Person relating to such Indemnified Person expressly
for use therein; and, provided further, however, that the indemnity agreement
contained in this subsection (a) with respect to any preliminary prospectus
shall not inure to the benefit of the Indemnified Persons or their agents,
employees, officers and directors for any Loss (i) if and to the extent the
Prospectus corrected any such alleged untrue statement or omission and (ii) if
such Indemnified Persons failed to send or give a copy of the Prospectus at or
prior to the written confirmation of a sale of the Notes to the person alleging
such Loss, unless such failure to deliver the Prospectus was a result of
non-compliance by the Company and Parent with Section 6(c)(ix) hereof. This
indemnity agreement will be in addition to any liability that each of the
Company and Parent may otherwise have, including, but not limited to, liability
under this Agreement.
(b) In connection with any Registration Statement pursuant to
which a Holder of Transfer Restricted Securities offers or sells Transfer
Restricted Securities, such
-19-
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company and Parent, their respective agents, employees, officers and directors
and each person controlling either the Company or Parent within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, and the agents,
employees, officers and directors of such controlling person to the same extent
as the foregoing indemnity from the Company and Parent to each Indemnified
Person but only with respect to, and to the extent that, information relating to
such Holder furnished in writing to the Company or Parent by or on behalf of
such Holder expressly for use in such Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, suit or proceeding
(collectively, an "ACTION"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
commencement of such Action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any other liability or
obligations to the indemnified party that it may have under this Section 8
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability which it may otherwise have). In case any such
Action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement of such Action, the indemnifying party will be
entitled to participate in such Action, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense of such
Action with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such Action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
Action, (ii) the indemnifying parties shall not have employed counsel reasonably
satisfactory to the indemnified party to take charge of the defense of such
Action within a reasonable time after notice of commencement of the Action, or
(iii) the named parties to such Action (including any impleaded parties) include
such indemnified party and the indemnifying parties (or such indemnifying
parties shall have assumed the defense of such action), and such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to those available
to one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such Action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses of counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying party be liable for the fees and expenses of more than
one counsel (together with appropriate local counsel) at any time for all
indemnified parties in connection with any one Action or separate but
substantially similar or related Actions arising out of the same general
allegations or circumstances. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or Action effected without its written consent; provided, however,
that such consent was not unreasonably withheld. No indemnifying party shall,
without prior
-20-
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party, or indemnity could have been sought hereunder by such indemnified
party, unless such settlement (A) includes an unconditional written release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any such indemnified
party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in paragraphs (a) and (b) of this Section
8 is for any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Company and Parent (jointly and severally) and the Indemnified Persons
(severally but not jointly), as applicable, shall contribute to the aggregate
Losses of the nature contemplated by such indemnification provision (but after
deducting in the case of Losses suffered by the indemnifying party, any
contribution received by the indemnifying party from persons other than the
Indemnified Person who may also be liable for contribution, including persons
who control the Indemnified Person within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act) to which the Company and Parent and the
Indemnified Persons may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Company and Parent, on the one
hand, and the Indemnified Persons, on the other hand, from the offering of the
Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in paragraph (c) of this Section 8 and having
been prejudiced in any material respect by the absence of such notice, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company and Parent, on the one hand,
and the Indemnified Persons, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and Parent, on the one hand, and the Indemnified Persons, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering of Old Notes (net of discounts but before deducting expenses) received
by the Company as set forth in the table on the cover page of the final offering
memorandum related thereto, and (y) the total proceeds received by such
Indemnified Person from the sale of Notes. The relative fault of the Company and
Parent, on the one hand, and the Indemnified Persons, on the other hand, shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and Parent or the
Indemnified Persons and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission.
(e) The Company and Parent and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to paragraph
(d) of this Section 8 were determined by pro rata allocation or by any other
method of allocation that does not take into
-21-
account the equitable considerations referred to above. Notwithstanding the
provisions of paragraph (d) of this Section 8, (i) in no case shall an
Indemnified Person be required to contribute any amount in excess of the amount
by which the total received by such Indemnified Person with respect to its sale
of its Transfer Restricted Securities or Exchange Notes, as the case may be,
exceeds the amount of any damages that such Indemnified Person has otherwise
been required to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of paragraphs (d) and (e) of this Section 8,
each person, if any, who controls an Indemnified Person within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Indemnified Person, and each person, if any, who
controls the Company and Parent within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Company and Parent, subject in each case to clauses (i) and (ii) of this
Section 8(e). Any party entitled to contribution will, promptly after receipt of
notice of commencement of any Action against such party in respect of which a
claim for contribution may be made against another party or parties under
paragraph 8(d) or (e) of this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under paragraph (d) or (e) of this Section 8
or otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; provided, however, that no additional notice shall be
required with respect to any Action for which notice has been given under
Section 8(c) for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any Action or claim settled without its written consent; provided, however,
that such written consent was not unreasonably withheld.
SECTION 9. Rule 144A. The Company and Parent agree with each
Holder, for so long as any Transfer Restricted Securities remain outstanding, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner and to Broker-Dealers, upon their
request, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. Participation in Underwritten Registrations. No
Holder may participate in any Underwritten Registration under this Agreement
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements approved
by the Persons entitled under this Agreement to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of attorneys,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
-22-
SECTION 11. Selection of Underwriters. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided that such investment
bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous.
(a) Remedies. Each Holder, in addition to being entitled to
exercise all rights provided in this Agreement, in the Notes Indenture, the
Purchase Agreement or granted by law, including recovery of liquidated or other
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and Parent agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any Action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and Parent will
not, and will cause each of the Subsidiary Guarantors not to, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions of this Agreement. No Issuer has
previously entered into any agreement currently in effect granting any
registration rights with respect to its respective securities to any Person,
except as disclosed in the Offering Memorandum dated November 13, 1998 relating
to the Old Notes. The rights granted to the Holders under this Agreement do not
in any way conflict with and are not inconsistent with the rights granted to the
holders of any of the Issuers' securities under any agreement in effect on the
date of this Agreement.
(c) Adjustments Affecting the Notes. Without the written
consent of the Holders of a majority in aggregate principal amount of
outstanding Transfer Restricted Securities, the Company and Parent will not, and
will cause each of the Subsidiary Guarantors not to, take any action, or permit
any change to occur, with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions of this Agreement may not be given unless (i) in
the case of Section 5 hereof and this Section 12(d)(i), the Company has obtained
the written consent of each affected Holder of outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions of this
Agreement that relates exclusively to the
-23-
rights of Holders whose securities are being sold or tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the rights of
other Holders whose securities are not being sold or tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities subject to such Exchange
Offer.
Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, (i) such
consents may be obtained in connection with a tender offer or exchange offer for
the Notes and (ii) Transfer Restricted Securities held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivering,
first-class mail (registered or certified, return receipt requested), telex,
telecopier or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Notes Indenture, with a copy to the Registrar
under the Notes Indenture; and
(ii) if to the Company or Parent, at:
Agrilink Foods, Inc.
00 Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
with a copy to:
Xxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered;
(ii) five business days after being deposited in the mail, postage prepaid, if
mailed; (iii) when answered back, if telexed; (iv) when receipt acknowledged by
telecopier machine, if telecopied; and (v) on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
-24-
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Notes Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties to this Agreement in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of this Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICT OF LAWS RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained in this Agreement, or the application of any such provision
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties to
this Agreement in respect of the subject matter contained in this Agreement.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to in this Agreement with respect to the
registration rights granted by the Company and Parent with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
[Signature Page Follows]
-25-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AGRILINK FOODS, INC.
By: /s/ XXXXXX X. XXXXXX
----------------------
Name:
Title:
PRO-FAC COOPERATIVE, INC.
By: [ILLEGIBLE]
-----------------------
Name:
Title:
Accepted and agreed as of
the date first above written:
WARBURG DILLON READ LLC
XXXXXXX XXXXX SECURITIES INC.
By: WARBURG DILLON READ LLC
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AGRILINK FOODS, INC.
By:
----------------------
Name:
Title:
PRO-FAC COOPERATIVE, INC.
By:
-----------------------
Name:
Title:
Accepted and agreed as of
the date first above written:
WARBURG DILLON READ LLC
XXXXXXX XXXXX SECURITIES INC.
By: WARBURG DILLON READ LLC
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
