EXHIBIT 99.9
EXHIBIT 1.1(i)
REGISTRATION RIGHTS AND TRANSFER RESTRICTION AGREEMENT
THIS REGISTRATION RIGHTS AND TRANSFER RESTRICTION AGREEMENT (the
"Agreement") is made and entered into as of __________, 2003 by and between
PILGRIM'S PRIDE CORPORATION, a Delaware corporation (the "Company"), Xxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx and CONAGRA FOODS, INC., a Delaware corporation
("Stockholder").
RECITALS
The Stockholder is the holder of _______ shares of Class A common
stock of the Company acquired pursuant to a certain Stock Purchase Agreement
dated June __, 2003 (the "Shares") by and between the Company and Stockholder
(the "Purchase Agreement").
Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx collectively control a
substantial majority of the shares of common stock of the Company.
The parties desire to provide for certain registration rights and
transfer limitations with respect to common stock of the Company.
AGREEMENT
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Class A Common Stock: the Class A common stock, $0.01 par value,
of the Company.
Class B Common Stock: the Class B common stock, $0.01 par value,
of the Company.
Commission: the Securities and Exchange Commission.
Common Stock: collectively, the Class A Common Stock and Class B
Common Stock.
Exchange Act: the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
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Pilgrim Family: Xxxxxx X. Xxxxxxx, his spouse, his issue, his
estate and any trust, partnership, including Pilgrim Interest, Ltd., or other
entity primarily for the benefit of his spouse and/or issue.
Prospectus: the prospectus included in any Registration
Statement, as amended or supplemented by any amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such prospectus.
Registrable Securities: shares of Class A Common Stock acquired
by the Stockholder pursuant to the Purchase Agreement, all other shares of
Common Stock, if any, held by the Stockholder on the date hereof, and securities
of the Company issued or issuable with respect to any such shares by way of a
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Registration Statement: any registration statement of the Company
under the Securities Act which covers resales of the Registrable Securities
pursuant to the provisions of this Agreement, including the prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
Securities Act: the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
2. Registration.
2.1 Registration. The Company shall file a Registration Statement
(on Form S-3 if available to the Company) to cover the offer and sale of all of
the Registrable Securities, and shall use its reasonable best efforts to cause
such Registration Statement to become effective no later than twelve months
following the date hereof. The Company shall promptly, upon the written request
of the Stockholder, file additional Registration Statements (on Form S-3 if
available to the Company), if required, to cover the offer and sale of
securities of the Company subsequently issued with respect to such Registrable
Securities by way of a dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. The offering and sale of Registrable Securities
shall be pursuant to a plan of distribution proposed by the Stockholder and
approved by the Company (with such approval not to be unreasonably withheld),
and may include underwritten offerings and the sale of Registrable Securities
from time to time. The managing lead underwriter or underwriters in connection
with any underwritten offering of the Registrable Securities
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shall be proposed by the Stockholder and approved by the Company (with such
approval not to be unreasonably withheld). The Company shall have the right to
appoint its own underwriter to participate as a manager in any such underwritten
offering.
2.2 Piggyback Registration.
(a) If the Company at any time proposes to register Common
Stock under the Securities Act either for its own account or for the account of
others, other than a registration on Form S-8 or Form S-4 (or successor forms
relating to employee stock plans and business combinations), and the form to be
used for such registration may be used for registration of the Registrable
Securities, it shall promptly give written notice to the Stockholder of its
intention to effect such registration (an "Incidental Registration"). Within 15
days after delivery of any such notice by the Company, the Stockholder may make
a written request (a "piggyback request") that the Company include in such
Incidental Registration the number of shares of Registrable Securities requested
by the Stockholder. Such piggyback request shall set forth the Registrable
Securities the Stockholder intends to dispose of and the intended method of
disposition thereof.
(b) The Company will use its best efforts to include in any
Incidental Registration all Registrable Securities which the Company has been
requested to register pursuant to any timely piggyback request to the extent
required to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered,
provided the Stockholder agrees, in the case of an underwritten offering, to
sell such Registrable Securities on the basis provided in any underwriting
arrangements reasonably approved by the Company and to enter into such
agreements with the underwriter as are customary in such offerings.
(c) Notwithstanding the preceding Sections 2.2(a) and (b):
(i) the Company shall not be obligated pursuant to
this Section 2.2 to effect a registration of Registrable
Securities requested pursuant to a piggyback request if the
Company discontinues the related Incidental Registration at
any time prior to the effective date of any Registration
Statement filed in connection therewith; and
(ii) the Company may exclude from an Incidental
Registration some or all of the Registrable Securities to the
extent a managing underwriter advises the Company that, in its
opinion, the inclusion of all of the Registrable Securities
shares proposed to be included in such registration would
interfere with the successful marketing of the Common Stock
proposed to be registered by the Company.
The Company shall advise the Stockholder of any exclusion of
Registrable Securities from an Incidental Registration
pursuant to clause (ii) above, in which case: (x) the Company
shall include in
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such Incidental Registration first the securities the Company
proposes to sell for its own account in such registration; (y)
the Common Stock held by officers and directors of the Company
and the Pilgrim Family shall be excluded from such
registration and underwriting to the extent required by such
limitation before any Registrable Securities are excluded; and
(z) any other shares to be registered for the account of
persons other than the Company shall be excluded on a pro rata
basis to the extent any Registrable Securities are to be
excluded.
(d) If and whenever the Company proposes to register any of
its equity securities under the Securities Act for its own account
(other than on Form S-4 or S-8 or any successor form) or is required to
use reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 2.2,
Stockholder agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144, of any Registrable Securities,
any other equity securities of the Company, or any securities
convertible into or exchangeable for any equity securities of the
Company, within 15 days prior to and 60 days (unless advised in writing
by the managing underwriter that a longer period, not to exceed 90
days, is required) after the effective date of the Registration
Statement relating to such registration, except as part of such
registration or with the prior written consent of the Company and the
managing underwriter, if any.
2.3 Tag-Along by Company.
(a) If the Stockholder at any time intends to sell some or all
of the Registrable Securities pursuant to an underwritten offering that is not
initiated by the Company on its own behalf ("Stockholder Offering"), it shall
promptly (and in no event less than 15 days prior to the commencement of such
offering) give written notice to the Company of its intention to effect such
offering. Within five days after delivery of any such notice by the Stockholder,
the Company may make a written request that the Company be permitted to sell in
such Stockholder Offering the number of shares of Common Stock requested by the
Company.
(b) The Stockholder will use its best efforts to permit the
Company to offer and sell in the Stockholder Offering all Common Stock which the
Company has requested to include in such offering, to the extent required to
permit the disposition of such Common Stock, provided the Company agrees to sell
such Common Stock on the basis provided in any underwriting arrangements
reasonably approved by the Stockholder and to enter into such agreements with
the underwriter as are customary in such offerings.
(c) Notwithstanding the preceding Sections 2.3(a) and (b), the
Stockholder may exclude from participation in a Stockholder Offering some or all
of the Common Stock requested by the Company to be included therein to the
extent a managing
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underwriter advises the Stockholder that, in its opinion, the inclusion of all
of the shares proposed to be included in such offering by the Company would
interfere with the successful marketing of the Common Stock proposed to be
offered and sold therein by the Stockholder.
2.4 Period of Effectiveness. The Company shall use its reasonable best
efforts to maintain the effectiveness of any Registration Statement filed
pursuant to Section 2.1 hereof until the earlier of:
(a) the time when the Registrable Securities covered by such
Registration Statement have been sold, or
(b) the later of five years following the date hereof or the
time the Stockholder may sell such Registrable Securities as a non-affiliate
within the safe harbor provided by Rule 144(k).
2.5 Allowed Delay.
(a) Notwithstanding anything to the contrary herein, if the
Company determines in good faith that the filing of a Registration Statement
with respect to Registrable Securities pursuant to this Section 2: (i) may
interfere with or affect the negotiation or completion of any transaction that
is being contemplated by the Company (whether or not a final decision has been
made to undertake such transaction), or (ii) would require the disclosure of
material information the disclosure of which at the time is not, in the good
faith determination of the Company, in the best interests of the Company, or
which the Company has a specific short-term need for preserving as confidential,
the Company shall not be required to file a Registration Statement pursuant to
this Section 2, or may withhold efforts to cause a Registration Statement to
become effective, until the earlier of (x) the date upon which such material
information is disclosed to the public (it being understood that nothing herein
shall require such disclosure) or, in the good faith determination of the
Company, ceases to be material and (y) sixty (60) days after the Company makes
such good faith determination.
(b) Notwithstanding anything to the contrary herein, for not
more than thirty (30) consecutive days or for a total of not more than
forty-five (45) days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
suspending the use of any Prospectus included in any Registration Statement
contemplated by this Section containing such information, the disclosure of
which at the time is not, in the good faith determination of the Company, in the
best interests of the Company.
(c) The occurrence of the circumstances described in
subsections (a) and (b) above shall constitute an "Allowed Delay." In the event
of an Allowed Delay, the Company shall promptly (i) notify the Stockholder in
writing of the existence of (but in no event, without the prior written consent
of Stockholder, shall the Company disclose to Stockholder any of the facts or
circumstances regarding) material non-public information
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giving rise to an Allowed Delay, and (ii) advise Stockholder in writing to cease
all sales under the Registration Statement until the end of the Allowed Delay.
3. Registration Procedures. Whenever the Company is under an
obligation to effect the registration of the Registrable Securities, the Company
shall:
(a) ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material
respects with the Securities Act and the rules and regulations
thereunder, and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(b) before filing the Registration Statement or Prospectus or
any amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference), furnish to the
Stockholder and its counsel copies of all such documents proposed to be filed,
which documents will be subject to the review of the Stockholder and its
counsel, and the Company shall use its reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments as are
reasonably proposed by the Stockholder;
(c) use its reasonable best efforts to prepare and file with
the Commission such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement continuously
effective for the periods provided herein; cause the related Prospectus to be
supplemented by any required supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act with respect to the disposition of the Registrable Securities,
including dispositions by underwritten offerings;
(d) notify the Stockholder
(i) when the Prospectus or the Registration Statement
has been filed with the Commission, and, with respect to the
Registration Statement or any post-effective amendment, when
the same has become effective,
(ii) of any request by the Commission or any other
federal or state governmental authority for amendments or
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supplements to the Registration Statement or Prospectus or for
additional information,
(iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose,
(v) of the existence of any fact or happening of any
event which makes any statement of a material fact in the
Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the
case of the Registration Statement, 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 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, and
(vi) of the Company's determination that a
post-effective amendment to the Registration Statement would
be appropriate;
(e) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, as promptly
as practicable;
(f) furnish to the Stockholder and its counsel, without
charge, and when filed a conformed copy of the Registration Statement and any
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing by the Stockholder);
(g) deliver to the Stockholder and underwriter, without
charge, as many copies of the Prospectus (including a preliminary prospectus, if
any) and any amendment or supplement thereto as reasonably requested; and the
Company hereby consents to the use of such Prospectus or each amendment or
supplement thereto by the Stockholder and the underwriter in connection with the
offering and sale of the Registrable Securities in the manner described in the
Prospectus;
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(h) use its reasonable best efforts, prior to any public
offering of Registrable Securities, to register or qualify or cooperate with the
Stockholder in connection with the registration or qualification (or exemption
from such registration or qualification) of the Registrable Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Stockholder or the underwriter reasonably request; keep each such registration
or qualification (or exemption therefrom) effective during the period the
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition of the
Registrable Securities in such jurisdictions, provided, that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would subject it
to general service of process in suits or to taxation in any such jurisdiction
where it is not then so subject;
(i) cause the Registrable Securities to be registered with or
approved by such other governmental agencies or authorities within the United
States, as may be necessary to enable the Stockholder to consummate the
disposition of the Registrable Securities, subject to the proviso contained in
(h) above;
(j) immediately upon the existence of any fact or the
occurrence of any event as a result of which the Registration Statement shall
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
not misleading, or a Prospectus shall 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, promptly prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall 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 not misleading, and so that the Prospectus 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, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to the Registration
Statement, use its best efforts to cause it to become effective as soon as
practicable;
(k) in connection with an underwritten offering of Registrable
Securities, enter into an underwriting agreement in form, scope and substance as
is customary in underwritten offerings and take all such other reasonable
actions in connection therewith as may be reasonably requested by the
underwriter in order to expedite or facilitate the disposition of the
Registrable Securities and in such connection,
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(i) make such representations and warranties to the
Stockholder and the underwriter with respect to the business
of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference, if any, 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 requested,
(ii) obtain the opinion of counsel to the Company,
which opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriter and shall be
addressed to the underwriter covering the matters customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
underwriter,
(iii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business
acquired or to be acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
underwriter, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may
be reasonably requested by the underwriter to evidence the
continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any customary conditions
contained in the underwriting agreement entered into by the
Company;
(l) if requested in connection with a disposition of
Registrable Securities pursuant to the Registration Statement, make reasonably
available for inspection by the Stockholder and the underwriter and any attorney
or accountant retained by the Stockholder or underwriter, financial and other
records, corporate documents and properties of the Company and its subsidiaries,
and cause the executive officers, directors and employees of the Company and its
subsidiaries to supply all
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information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such disposition; subject to
reasonable written assurances by each such person that such information will be
kept confidential, will not be used as the basis for any transactions in the
Company's securities, and will only be used in connection with such person's
reasonable investigation in connection with the Registration Statement;
(m) comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its security
holders earning statements (which need not be audited) satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year), commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(n) cooperate with the Stockholder to facilitate the timely
preparation and delivery of certificates representing the Registrable Securities
to be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
Stockholder may reasonably request; and
(o) if the Registrable Securities are to be sold in an
underwritten offering, cause such executive or executives as the managing
underwriter or the Stockholder may reasonably request (including, if so
requested, the Company's Chief Executive Officer and Chief Financial Officer) to
attend any analyst and investment preparations, including any "roadshow" for up
to three business days in any twelve month period. The Stockholder will
reimburse the reasonable travel expenses of the executive or executives.
Stockholder shall be deemed to have agreed that upon receipt
of any notice from the Company of the commencement of an Allowed Delay or the
occurrence of an event described in Sections 3(d)(v) or (vi), Stockholder will
promptly discontinue such Stockholder's disposition of Registrable Securities
pursuant to a Registration Statement covering such Registrable Securities until
such Stockholder shall have received notice from the Company that such Allowed
Delay has concluded or Registration Statement has been amended and/or copies of
the supplemented or amended Prospectus contemplated by Sections 3(d)(v) or (vi)
have been furnished. If so directed by the Company, Stockholder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, in such Stockholder's possession of the Prospectus covering such
Registrable Securities at the time of receipt of such notice.
4. Stockholder Information. The Stockholder agrees to promptly
upon the Company's request, furnish such information regarding the Stockholder
and the
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distribution of the Registrable Securities as the Company may from time to time
reasonably request and as may be required in connection with the preparation of
a Registration Statement. The Stockholder also agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Stockholder not
materially false or misleading. The receipt by the Company of information
pursuant to this Section 4 shall be a condition precedent to the Company's
obligations under Sections 2 and 3.
5. Fees and Expenses. All fees and expenses incurred by the
Company in performance of or compliance with this Agreement shall be borne by
the Company. Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
of compliance with federal securities or Blue Sky laws), (ii) printing expenses,
(iii) fees and disbursements of counsel for the Company, and (iv) fees and
disbursements of all independent certified public accountants (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance). In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section, the Stockholder shall pay all of its transfer
taxes, if any, relating to the sale of Registrable Securities, underwriting
discounts, concessions and commissions (including fees and expenses of
underwriter's counsel) with respect to the Registrable Securities, and the fees
and expenses of Stockholder's own counsel.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Stockholder, and its officers, employees and agents and each person who controls
the Stockholder within the meaning of either the Securities Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(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 as originally filed or in any amendment thereof, or in
any preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any case to the extent that any such loss, claim,
damage or liability 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 information furnished to the Company by the
Stockholder or the Stockholder's representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
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The Company also agrees to indemnify losses of any
underwriter of any Registrable Securities, registered under a Registration
Statement, their directors, officers, employees or agents and each Person who
controls such underwriter (within the meaning of the Securities Act or the
Exchange Act) on substantially the same basis as that of the indemnification of
the Stockholder provided above and shall, if requested by the Stockholder, enter
into an underwriting agreement reflecting such agreement.
(b) The Stockholder agrees to indemnify and hold harmless
the Company and its directors and officers who sign such Registration Statement
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Stockholder, but only with reference to
information relating to the Stockholder furnished to the Company by the
Stockholder or Stockholder's representatives specifically for inclusion in a
Registration Statement. This indemnity agreement will be in addition to any
liability which the Stockholder may otherwise have.
The Stockholder also agrees to indemnify losses of any
underwriter of any Registrable Securities, registered under a Registration
Statement, their directors, officers, employees or agents and each Person who
controls such underwriter (within the meaning of the Securities Act or the
Exchange Act) on substantially the same basis as that of the indemnification of
the Company provided above and shall, if requested by the Company, enter into an
underwriting agreement reflecting such agreement.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any
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loss, liability, claim, damage or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense in such proportion as
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or expense,
as well as any other relevant equitable considerations. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue (or alleged untrue)
statement of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
7. Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act
and the Exchange Act; and
(iii) so long as the Stockholder owns any Registrable
Securities, furnish to the Stockholder upon request, a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed as
the Stockholder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Stockholder to sell any
such securities without registration.
8. Transfer Limitations.
(a) Without the prior written consent of the Company, the
Stockholder agrees that it will not, and will cause each of its Affiliates not
to, directly or indirectly,
(i) except pursuant to a third party tender offer, offer,
pledge, sell, contract to sell, grant or otherwise transfer or dispose
of, or enter into any swap, short position or other arrangement that
transfers all or a portion of the economic consequences associated with
the ownership of (regardless of whether any of the transactions
described is to be settled by the delivery of Common Stock, or other
13
securities convertible into or exercisable or exchangeable for Common
Stock, in cash or otherwise) (x) any shares of Common Stock, or any
securities convertible into or exercisable or exchangeable for Common
Stock, prior to 12 months following the date hereof, or (y) during any
12 month period a number of shares of Common Stock greater in number
than 33 1/3% of the Class A Common Stock issued by the Company pursuant
to the Purchase Agreement, or
(ii) (A) acquire, offer to acquire or agree to acquire
beneficial ownership of any voting securities of the Company, except
pursuant to stock splits, reverse stock splits, stock dividends or
distributions, or combinations or any similar recapitalization, on or
after the date hereof;
(B) acquire, offer to acquire or agree to
acquire any business or material assets of the Company or any
of its subsidiaries;
(C) initiate or propose any offer by any
third party to acquire beneficial ownership of voting
securities of the Company, other than an acquisition of
Shares;
(D) initiate or propose any merger, tender
offer, business combination or other extraordinary transaction
involving the Company or any of its subsidiaries;
(E) form, join or in any way participate in
a group of persons acquiring, holding, voting or disposing of
any voting securities of the Company which would be required
under Section 13(d) of the Exchange Act and the rules and
regulations thereunder to file a statement on Schedule 13D
with the SEC as a "person" within the meaning of Section
13(d)(3) of the Exchange Act (or any successor statute or
regulation); or
(F) propose, or agree to, or enter into any
discussions, negotiations or arrangements with, or provide any
confidential information to, any third party with respect to
any of the foregoing.
(b) Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx agree that they
shall not, and shall not allow Pilgrim Interest, Ltd. to, offer, sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock during
the time that the Stockholder owns 5% or more of the number of shares of
outstanding Common Stock without the consent of the Stockholder. A legend
reflecting the forgoing restriction shall be placed on the shares. The
restriction shall not (i) apply to transfers of Common Stock as a bona fide gift
to a member of the Pilgrim Family or to a trust or other entity for their
benefit for estate planning purposes, provided the transferees, beneficiaries
and trustees thereof agree in writing to be bound by such restriction or (ii)
restrict the sale of up to 120,000 shares of Common Stock by the Pilgrim Family
during any 12 month period.
14
(c) The number of shares referred to in this section shall be
adjusted to reflect any subsequent stock split, share dividend,
recapitalization, reclassification or similar transaction effected by the
Company
9. Miscellaneous.
(a) No Conflicting Agreements. The Company has not, as of the
date hereof, and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which conflicts with the rights
granted to the Stockholder in this Agreement. The Company represents and
warrants that the rights granted to the Stockholder hereunder do not in any way
conflict with the rights granted to the Stockholders of the Company's securities
under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, except by written consent of the parties.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(x) if to the Stockholder, to:
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxx X. X'Xxxxxxx
Executive Vice President and
Chief Financial Officer
with a copy to:
XxXxxxx Xxxxx Xxxxxx & Xxxxx, XX XXX
Xxxxx 0000, First National Tower
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Fax No. 000-000-0000
Attn: Xxxxx Xxxxx
15
(y) if to the Company, to:
Pilgrim's Pride Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx & XxXxxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx
or to such other address as such person may have furnished to the other persons
identified in this section in writing in accordance herewith.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties. The Stockholder may assign all or any part of its registration rights
under this Agreement to any person or entity to whom the Stockholder sells,
transfers or assigns at least 10% of the Shares, provided that any such
purchaser, transferee or assignee expressly agrees in writing to be bound by the
terms and conditions of this Agreement and subject to Stockholder's obligations
hereunder. In the event the Stockholder shall assign its registration rights
pursuant to this Agreement in connection with the transfer of less than all of
its Registrable Securities to another holder, the Stockholder shall also retain
its registration rights with respect to the remaining Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
16
(h) Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
DELAWARE STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company to the Stockholder. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
(k) Further Assurances. Each of the parties hereto shall use
all best efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
17
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PILGRIM'S PRIDE CORPORATION
By:
----------------------------------
Name:
------------------------------
Title:
-----------------------------
CONAGRA FOODS, INC.
By:
---------------------------------
Name:
--------------------------------
Title:
------------------------------
XXXXXX X. XXXXXXX
-------------------------------------
XXXXXX X. XXXXXXX
-------------------------------------
18
10.50% SUBORDINATED NOTES DUE MARCH 4, 2011
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of __________, 2003 by and between PILGRIM'S PRIDE CORPORATION,
a Delaware corporation (the "Company"), and CONAGRA FOODS, INC., a Delaware
corporation ("Holder").
RECITALS
The Holder is the holder of $__________________ in aggregate principal
amount of 10.50% Subordinated Notes due March 4, 2011 (the "Securities") issued
by the Company pursuant to a certain Stock Purchase Agreement dated June __,
2003 by and between the Company and Holder (the "Purchase Agreement").
The parties desire to provide for certain registration rights with
respect to the Securities.
AGREEMENT
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
Commission: the Securities and Exchange Commission.
Exchange Act: the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
Indenture: the Indenture relating to the Securities, dated as of
______, between the Company and ______________, as trustee, as the same may be
amended from time to time in accordance with the terms thereof. Prospectus: the
prospectus included in any Registration Statement, as amended or supplemented by
any amendment or prospectus supplement, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by reference
in such prospectus.
Registrable Securities: the Securities and securities of the
Company issued or issuable with respect to the Securities by way of
recapitalization, merger, consolidation or other reorganization or otherwise.
Registration Statement: any registration statement of the Company
under the Securities Act which covers resales of the Registrable Securities
pursuant to the provisions
1
of this Agreement, including the prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
Securities Act: the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
2. Registration.
2.1 Registration. The Company shall file a Registration Statement
(on Form S-3 if available to the Company) to cover the offer and sale of all of
the Registrable Securities, and shall use its reasonable best efforts to cause
such Registration Statement to become effective no later than twelve months
following the date hereof. The Company shall promptly, upon the written request
of the Holder, file additional Registration Statements (on Form S-3 if available
to the Company), if required, to cover the offer and sale of securities of the
Company subsequently issued with respect to such Registrable Securities by way
of recapitalization, merger, consolidation or other reorganization or otherwise.
The offering and sale of Registrable Securities shall be pursuant to a plan of
distribution proposed by the Holder and approved by the Company (with such
approval not to be unreasonably withheld), and may include underwritten
offerings and the sale of Registrable Securities from time to time. The managing
underwriter or underwriters in connection with any underwritten offering of the
Registrable Securities shall be selected by the Holder.
2.2 Period of Effectiveness. The Company shall use its reasonable
best efforts to maintain the effectiveness of any Registration Statement until
the earlier of:
(c) the time when the Registrable Securities covered by such
Registration Statement have been sold, or
(d) the later of five years following the date hereof or the
time the Holder may sell such Registrable Securities as a non-affiliate within
the safe harbor provided by Rule 144(k).
2.3 Allowed Delay.
(a) Notwithstanding anything to the contrary herein, if the
Company determines in good faith that the filing of a Registration Statement
with respect to Registrable Securities pursuant to this Section 2: (i) may
interfere with or affect the negotiation or completion of any transaction that
is being contemplated by the Company (whether or not a final decision has been
made to undertake such transaction), or (ii) would require the disclosure of
material information the disclosure of which at the time is not, in the good
faith determination of the Company, in the best interests of the Company, or
which
2
the Company has a specific short-term need for preserving as confidential, the
Company shall not be required to file a Registration Statement pursuant to this
Section 2, or may withhold efforts to cause a Registration Statement to become
effective, until the earlier of (x) the date upon which such material
information is disclosed to the public (it being understood that nothing herein
shall require such disclosure) or, in the good faith determination of the
Company, ceases to be material and (y) sixty (60) days after the Company makes
such good faith determination.
(b) Notwithstanding anything to the contrary herein, for not
more than thirty (30) consecutive days or for a total of not more than
forty-five (45) days in any twelve (12) month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
suspending the use of any Prospectus included in any Registration Statement
contemplated by this Section containing such information, the disclosure of
which at the time is not, in the good faith determination of the Company, in the
best interests of the Company.
(c) The occurrence of the circumstances described in
subsections (a) and (b) above shall constitute an "Allowed Delay." In the event
of an Allowed Delay, the Company shall promptly (i) notify the Holder in writing
of the existence of (but in no event, without the prior written consent of
Holder, shall the Company disclose to Holder any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay, and
(ii) advise Holder in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay.
3. Registration Procedures. Whenever the Company is under an obligation
to effect the registration of the Registrable Securities, the Company shall:
(a) ensure that:
(iii) any Registration Statement and any
amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto
complies in all material respects with the Securities
Act and the rules and regulations thereunder, and
(iv) any Registration Statement and any
amendment thereto does not, when it becomes
effective, contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading;
(b) before filing the Registration Statement or Prospectus or any
amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference), furnish to the
Holder and its counsel copies of all such documents proposed to be filed, which
documents will be subject to the review of the Holder and its counsel, and the
Company shall use its reasonable best efforts to reflect in
3
each such document, when so filed with the Commission, such comments as are
reasonably proposed by the Holder;
(c) use its reasonable best efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement continuously
effective for the periods provided herein; cause the related Prospectus to be
supplemented by any required supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act with respect to the disposition of the Registrable Securities,
including dispositions by underwritten offerings;
(d) notify the Holder
(vii) when the Prospectus or the
Registration Statement has been filed with the
Commission, and, with respect to the Registration
Statement or any post-effective amendment, when the
same has become effective,
(viii) of any request by the Commission or
any other federal or state governmental authority for
amendments or supplements to the Registration
Statement or Prospectus or for additional
information,
(ix) of the issuance by the Commission or
any other federal or state governmental authority of
any stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose,
(x) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any
of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose,
(xi) of the existence of any fact or
happening of any event which makes any statement of a
material fact in the Registration Statement or
Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue or which
would require the making of any changes in the
Registration Statement or Prospectus in order that,
in the case of the Registration Statement, 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 not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement
of a material
4
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, and
(xii) of the Company's determination that a
post-effective amendment to the Registration
Statement would be appropriate;
(e) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, as promptly
as practicable;
(f) furnish to the Holder and its counsel, without charge, and
when filed a conformed copy of the Registration Statement and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing by the Holder);
(g) deliver to the Holder and underwriter, without charge, as
many copies of the Prospectus (including a preliminary prospectus, if any) and
any amendment or supplement thereto as reasonably requested; and the Company
hereby consents to the use of such Prospectus or each amendment or supplement
thereto by the Holder and the underwriter in connection with the offering and
sale of the Registrable Securities in the manner described in the Prospectus;
(h) use its reasonable best efforts, prior to any public offering
of Registrable Securities, to register or qualify or cooperate with the Holder
in connection with the registration or qualification (or exemption from such
registration or qualification) of the Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Holder or the
underwriter reasonably request; keep each such registration or qualification (or
exemption therefrom) effective during the period the Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition of the Registrable Securities in such
jurisdictions, provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action that would subject it to general service of process in
suits or to taxation in any such jurisdiction where it is not then so subject;
(i) cause the Registrable Securities to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the Holder to consummate the disposition of
the Registrable Securities, subject to the proviso contained in (h) above;
(j) immediately upon the existence of any fact or the occurrence
of any event as a result of which a Registration Statement shall 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 not misleading,
or a Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
5
make the statements therein, in the light of the circumstances under which they
were made, not misleading, promptly prepare and file a post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall 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
not misleading, and so that the Prospectus 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, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to the Registration Statement,
use its best efforts to cause it to become effective as soon as practicable;
(k) cause the Indenture to be qualified under the Trust Indenture
Act in a timely manner;
(l) in connection with an underwritten offering of Registrable
Securities, enter into an underwriting agreement in form, scope and substance as
is customary in underwritten offerings and take all such other reasonable
actions in connection therewith as may be reasonably requested by the
underwriter in order to expedite or facilitate the disposition of the
Registrable Securities and in such connection,
(v) make such representations and warranties to the
Holder and the underwriter with respect to the business of the
Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, 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 requested,
(vi) obtain the opinion of counsel to the Company,
which opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriter and shall be
addressed to the underwriter covering the matters customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
underwriter,
6
(vii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business
acquired or to be acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
underwriter, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings, and
(viii) deliver such documents and certificates as may
be reasonably requested by the underwriter to evidence the
continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any customary conditions
contained in the underwriting agreement entered into by the
Company;
(m) the Company will use its reasonable best efforts (i) if the
Registrable Securities have been rated prior to the initial sale of such
Registrable Securities, to confirm such ratings will apply to the Registrable
Securities covered by a Registration Statement, or (ii) if the Registrable
Securities were not previously rated, to cause the Registrable Securities
covered by a Registration Statement to be rated by up to two nationally
recognized statistical rating agencies, if so requested by the Holder with
respect to the related Registration Statement or by any underwriter.
(n) if requested in connection with a disposition of Registrable
Securities pursuant to the Registration Statement, make reasonably available for
inspection by the Holder and the underwriter and any attorney or accountant
retained by the Holder or underwriter, financial and other records, corporate
documents and properties of the Company and its subsidiaries, and cause the
executive officers, directors and employees of the Company and its subsidiaries
to supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such disposition; subject
to reasonable written assurances by each such person that such information will
be kept confidential, will not be used as the basis for any transactions in the
Company's securities, and will only be used in connection with such person's
reasonable investigation in connection with the Registration Statement;
7
(o) comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to its security
holders earning statements (which need not be audited) satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year), commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(p) cooperate with the Holder to facilitate the timely
preparation and delivery of certificates representing the Registrable Securities
to be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
Holder may reasonably request; and
(q) if the Registrable Securities are to be sold in an
underwritten offering, cause such executive or executives as the managing
underwriter or the Holder may reasonably request (including, if so requested,
the Company's Chief Executive Officer and the Chief Financial Officer) to attend
any analyst and investment preparations, including any "roadshow" for up to
three business days in any twelve month period. The Stockholder will reimburse
the reasonable travel expenses of the executive or executives.
Holder shall be deemed to have agreed that upon receipt of any notice
from the Company of the commencement of an Allowed Delay or the occurrence of an
event described in Sections 3(d)(v) or (vi), Holder will promptly discontinue
such Holder's disposition of Registrable Securities pursuant to a Registration
Statement covering such Registrable Securities until Holder shall have received
notice from the Company that such Allowed Delay has concluded or Registration
Statement has been amended and/or copies of the supplemented or amended
Prospectus contemplated by Sections 3(d)(v) or (vi) have been furnished. If so
directed by the Company, Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, in such Holder's
possession of the Prospectus covering such Registrable Securities at the time of
receipt of such notice.
4. Holder Information. The Holder agrees to, promptly upon the
Company's request, furnish such information regarding the Holder and the
distribution of the Registrable Securities as the Company may from time to time
reasonably request and as may be required in connection with the preparation of
a Registration Statement. Holder also agrees to furnish promptly to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially false or
misleading. The receipt by the Company of information pursuant to this Section 4
shall be a condition precedent to the Company's obligations under Sections 2 and
3.
8
5. Special Interest. If a Registration Statement has not been declared
effective by the Commission on or before 12 months following the date hereof or
after the Registration Statement has been declared effective, such Registration
Statement thereafter ceases to be effective or usable in connection with resales
of Registrable Securities in accordance with and during the periods specified in
this Agreement (each such event a "Registration Default"), interest ("Special
Interest") will accrue on the principal amount of the Registrable Securities (in
addition to the stated interest on the Securities) from and including the date
on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured; provided, however, no such
Registration Default shall occur and no such Special Interest shall accrue
pursuant to this Section 5 if the cause of the delay in filing and effectiveness
of a Registration Statement or the subsequent cessation of effectiveness is: (a)
due to the Company not receiving information pursuant to Section 4; (b) due to
or during the pendency of an Allowed Delay; or (c) due to or during the sixty
(60) day period following the occurrence of an event described in Sections
3(d)(v) or (vi). Special Interest will accrue at a rate of 0.25% per annum
during the 90-day period immediately following the occurrence of such
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum. The provisions of this section shall not constitute the exclusive remedy
of the Holder for the Company's breach of this Agreement. In addition to any and
all other remedies that may be available at law in the event of any breach of
this Agreement, the Holder shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
6. Private Placement. Upon the request of the Holder, the Company will
reasonably cooperate, and shall instruct its independent accountants to
reasonably cooperate, with the Holder in order for the Holder to sell the
Registrable Securities in a private placement, including the Company's
preparation of an offering memorandum and entering into and performing pursuant
to an underwriting or placement agent agreement in form, scope and substance as
is customary in such offerings. The purchasers of the Registrable Securities who
acquire from Holder at least $20,000,000 principal amount of the Registrable
Securities in the private placement shall be granted registration rights by the
Company in the form customarily granted in such offerings, including, if
requested by the Holder, the issuance of debt securities identical in all
material respects to the Registrable Securities to be offered to such purchasers
in an exchange transaction registered on Form S-4.
7. Fees and Expenses. All fees and expenses incurred by the Company in
performance of or compliance with this Agreement shall be borne by the Company.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses of compliance
with federal securities or Blue Sky laws), (ii) printing expenses, (iii) fees
and disbursements of counsel for the Company, and (iv) fees and disbursements of
all independent certified public accountants (including the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance). In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and
9
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of this
Section, the Holder shall pay all of its transfer taxes, if any, relating to the
sale of Registrable Securities, underwriting discounts, concessions and
commissions (including fees and expenses of underwriter's counsel) with respect
to the Registrable Securities, and the fees and expenses of Holder's own
counsel. Notwithstanding the foregoing, the Company agrees to pay one-half of
ConAgra Foods, Inc.'s reasonable underwriting discounts, commissions and
placement agency fees with respect to its initial sale of the Registrable
Securities.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Holder, and its officers, employees and agents and each person who controls the
Holder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (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 as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any case to the extent that any such loss, claim, damage or liability 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 information furnished to the Company by the Holder or the Holder's
representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify losses of any underwriter
of any Registrable Securities, registered under a Registration Statement, their
directors, officers, employees or agents and each Person who controls such
underwriter (within the meaning of the Securities Act or the Exchange Act) on
substantially the same basis as that of the indemnification of the Holder
provided above and shall, if requested by the Holder, enter into an underwriting
agreement reflecting such agreement.
(b) The Holder agrees to indemnify and hold harmless the
Company and its directors and officers who sign such Registration Statement and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Holder, but only with reference to information relating to the Holder
furnished to the Company by the Holder or Holder's representatives specifically
for inclusion in a Registration Statement. This indemnity agreement will be in
addition to any liability which the Holder may otherwise have.
The Holder also agrees to indemnify losses of any underwriter
of any Registrable Securities, registered under a Registration Statement, their
directors, officers, employees or agents and each Person who controls such
underwriter (within the meaning of the Securities Act or the Exchange Act) on
substantially the same basis as that of the
10
indemnification of the Company provided above and shall, if requested by the
Company, enter into an underwriting agreement reflecting such agreement.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
9. Rule 144 Reporting.
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With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act
and the Exchange Act; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing the Holder to sell any such securities without registration.
10. Miscellaneous.
(a) No Conflicting Agreements. The Company has not, as of the
date hereof, and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which conflicts with the rights
granted to the Holder in this Agreement. The Company represents and warrants
that the rights granted to the Holder hereunder do not in any way conflict with
the rights granted to the Holders of the Company's securities under any other
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, except by written consent of the parties.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(x) if to the Holder, to:
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxx X. X'Xxxxxxx
Executive Vice President and
Chief Financial Officer
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with a copy to:
XxXxxxx Xxxxx Xxxxxx & Xxxxx, XX XXX
Xxxxx 0000, First National Tower
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Fax No. 000-000-0000
Attn: Xxxxx Xxxxx
(y) if to the Company, to:
Pilgrim's Pride Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx & XxXxxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx
or to such other address as such person may have furnished to the other persons
identified in this section in writing in accordance herewith.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties. The Holder may assign all or any part of its registration rights under
this Agreement to any person or entity to whom the Holder sells, transfers or
assigns at least $20,000,000 principal amount of such Registrable Securities,
provided that any such purchaser, transferee or assignee expressly agrees in
writing to be bound by the terms and conditions of this Agreement and subject to
Holder's obligations hereunder. In the event the Holder shall assign its
registration rights pursuant to this Agreement in connection with the transfer
of less than all of its Registrable Securities to another holder, the Holder
shall also retain its registration rights with respect to the remaining
Registrable Securities.
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(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(h) Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
DELAWARE STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company to the Holder. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such registration rights.
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(k) Further Assurances. Each of the parties hereto shall use
all best efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PILGRIM'S PRIDE CORPORATION
By:
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Name:
------------------------------------
Title:
-----------------------------------
CONAGRA FOODS, INC.
By:
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Name:
------------------------------------
Title:
-------------------------------------
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