EXHIBIT 4.5
EXECUTION COPY
SWIFT & COMPANY
12 1/2% SENIOR SUBORDINATED NOTES DUE JANUARY 1, 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
September 19, 2002
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Swift & Company, a corporation organized under the laws of the
State of Delaware (the "Company"), proposes to issue and sell $150,000,000 in
aggregate principal amount of its 121/2% Senior Subordinated Notes due January
1, 2010 (the "NOTES") to you, upon the terms set forth in the Agreement, dated
as of May 20, 2002 (as amended to date, the "ACQUISITION AGREEMENT"), among you,
HMTF Rawhide, L.P. and Swift Foods Company relating to, among other things, the
initial placement of the Notes (the "INITIAL PLACEMENT"). The Notes will be
guaranteed (the "GUARANTEES" and, together with the Notes, the "SECURITIES") on
an unsecured senior basis by S&C Holdco 3, Inc. and each of the Company's direct
and indirect domestic subsidiaries set forth on the signature page hereto (the
"GUARANTORS"). To induce you to purchase the Securities, the Company and the
Guarantors agree with you for your benefit and the benefit of your Affiliates
who acquire the Securities from you, as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Acquisition Agreement" shall have the meaning set forth in
the preamble hereto.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Advice" shall have the meaning set forth in Section 4(i)
hereof.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
"Agreement" shall mean this Registration Rights Agreement.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"ConAgra" shall mean ConAgra Foods, Inc., a Delaware
corporation.
"Demand Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"Effectiveness Date" shall have the meaning set forth in
Section 2(a) hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" shall mean ConAgra or any Affiliate of ConAgra that
acquires the Securities directly from ConAgra.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of September 19, 2002, between the Company, the Guarantors
and The Bank of New York Trust Company of Florida, N.A., as trustee, as the same
may be amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities covered by such Registration
Statement, and all amendments and supplements thereto and all material
incorporated by reference therein.
"Registration Default" shall have the meaning set forth in
Section 5 hereof.
"Registration Statement" shall mean any Demand Registration
Statement or Shelf Registration Statement that covers any of the Securities
pursuant to the provisions of this Agreement, any amendments and supplements to
such registration statement, including post-effective amendments (in each case
including the Prospectus contained therein), all exhibits thereto and all
material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Effectiveness Date" shall have the meaning set forth in
Section 3(a) hereof.
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"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth
in Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Special Interest" shall have the meaning set forth in Section
5 hereof.
"Suspension Notice" shall have the meaning set forth in
Section 4(c) hereof.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Demand Registration Statement or a
Shelf Registration Statement.
2. Demand Registration.
(a) The Company and the Guarantors covenant and agree with
each Holder that if on or after the date hereof, the Company receives a written
request from Holders of more than 50% of the then outstanding Securities, then
the Company and the Guarantors shall prepare and, not later than 90 days
following the date of the registration request (or if such 90th day is not a
Business Day, the next succeeding Business Day), shall file with the Commission
a Registration Statement (the "DEMAND REGISTRATION STATEMENT") and shall use
their reasonable best efforts to cause such Demand Registration Statement to
become effective under the Act within 180 days of the date of the registration
request (or if such 180th day is not a Business Day, the next succeeding
Business Day) (such date, the "EFFECTIVENESS DATE") with respect to the offering
and sale or other disposition of such Securities as such Holders desire to have
covered by such Demand Registration Statement, but in no event shall the
Effectiveness Date occur prior to March 19, 2003 unless the initial purchasers
of the Company's 10 1/8% Senior Notes due 2009 have waived in writing the
lock-up period pursuant to the lock-up agreement, dated September 3, 2002,
entered into among ConAgra, such initial purchasers and HMTF Rawhide, L.P. and
ConAgra shall have delivered a copy of such waiver to the Company. The Company
shall use its reasonable best efforts to continuously maintain the effectiveness
of such Registration Statement until the earlier of (i) 60 days after the
Effectiveness Date or (ii) the consummation of the distribution by the Holders
of all of the Securities covered by such Registration Statement (the
"EFFECTIVENESS PERIOD").
(b) Notwithstanding anything in this Agreement to the
contrary:
(i) the Company shall not be required to effect more
than one registration pursuant to this Section 2;
(ii) if the intended method of distribution is an
underwritten public offering, the Company shall not be
required to effect such registration pursuant to this Section
2 unless such underwriting shall be conducted on a "firm
commitment" basis; and
(iii) any Holder whose Securities were to be included
in any such registration, by written notice to the Company,
may withdraw such request and, if upon receipt of
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such notice of the withdrawal of such request the Holders that
have not elected to withdraw do not hold, in the aggregate,
the requisite percentage of the Securities to initiate a
request under this Section 2, then the Company shall not
effect such registration and if the Holders of such Securities
reimburse the Company for the out-of pocket costs of such
registration, such registration shall not be deemed effected
for the purpose of clause (i) above.
(c) Each notice to the Company requesting registration to be
effected shall set forth (i) the number of Securities to be included; (ii) the
name of the Holders of such Securities and the amount to be sold; and (iii) the
proposed manner of sale. Within 10 days after receipt of such notice, the
Company shall notify each Holder who is not a party to the written notice served
on the Company and offer to them the opportunity to include their Securities in
such registration. A Registration Statement will not be deemed to comply with
the terms hereof unless it is declared effective by the Commission and remains
continuously effective for the Effectiveness Period (other than during any
suspension period described in Section 4(c)).
(d) Each Holder agrees, if requested by the Managing
Underwriter or underwriters in an underwritten offering of securities of the
Company, not to effect any public sale or distribution of Securities or of
securities of the Company of the same class as any securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 180-day period beginning on, the closing date of each
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the Managing Underwriter or
underwriters and provided that such period is no longer than the hold-back
period agreed to by any other person in connection with such registration.
3. Shelf Registration.
(a) The Company and the Guarantors covenant and agree with
each Holder that if on or after the date hereof, the Company receives a written
request from Holders of more than 50% of the then outstanding Securities, then
within 90 days after receipt of such notice the Company shall file a Shelf
Registration Statement relating to the offer and sale of the Securities by the
Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement and
shall use their reasonable best efforts to cause such Shelf Registration
Statement to become effective under the Act within 180 days of the date of the
registration request ( or if such 180th day is not a Business Day, the next
succeeding Business Day) at the earliest possible date after such notice (such
date, the "SHELF EFFECTIVENESS DATE"), but in no event shall the Shelf
Effectiveness Date occur prior to March 19, 2003 unless the initial purchasers
of the Company's 10 1/8% Senior Notes due 2009 have waived in writing the
lock-up period pursuant to the lock-up agreement, dated September 3, 2002,
entered into among ConAgra, such initial purchasers and HMTF Rawhide, L.P. and
ConAgra shall have delivered a copy of such waiver to the Company. No Holder
shall be entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder.
(b) The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of 180
days from the Shelf Effectiveness Date or such shorter period that will
terminate when all the Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "SHELF REGISTRATION PERIOD"). The Company and the
Guarantors shall be deemed not to have used their respective reasonable best
efforts to
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keep the Shelf Registration Statement effective during the requisite period if
they voluntarily take any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during that
period, unless (A) such action is required by applicable law or (B) such action
is taken by the Company and the Guarantors in good faith and for valid business
reasons (not including avoidance of the Company and the Guarantors' obligations
hereunder), including the acquisition or divestiture of assets (to the extent
permitted by the terms of the Indenture), so long as the Company and the
Guarantors promptly thereafter comply with the requirements of Section 4(i)
hereof, if applicable.
(c) The Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material respects with the
applicable requirements of the Act and (B) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein (including, upon request, all documents incorporated
by reference therein after the initial filing) and shall use
their respective reasonable best efforts to reflect in each
such document, when so filed with the Commission, such
comments as you reasonably propose; and
(ii) include the names of the Holders that propose to
sell Securities pursuant to the Registration Statement as
selling security holders.
(b) The Company and the Guarantors shall 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 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.
(c) The Company and the Guarantors shall advise the Holders of
Securities covered by any Registration Statement and, if requested by any such
Holder, shall confirm such advice in writing (which notice pursuant to clauses
(ii) through (v) hereof shall be accompanied by an instruction (the "SUSPENSION
NOTICE") to suspend the use of the Prospectus until the Company and the
Guarantors shall have remedied the basis for such suspension):
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
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(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
(iii) of the issuance by the Commission 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 and the Guarantors
of any notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation of any proceeding for such
purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their respective
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors shall furnish to each
Holder of Securities covered by any Registration Statement, without charge, at
least one copy of such Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period or the Effectiveness Period, as applicable, deliver to each
Holder of Securities covered by the applicable Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
included in such Registration Statement and any amendment or supplement thereto
as such Holder may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of securities in connection with the offering and sale of the
Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Registration Statement.
(g) Prior to any offering of Securities pursuant to any
Registration Statement, the Company and the Guarantors shall arrange, if
necessary, for the qualification of the Securities for sale under the laws of
such jurisdictions as any Holder shall reasonably request and will maintain such
qualification in effect so long as required; provided that in no event shall the
Company or the Guarantors be obligated to qualify to do business in any
jurisdiction or as a dealer in securities where they are not then so qualified
or to take any action that would subject them to service of process in suits or
taxation, other than suits arising out of the Initial Placement or any offering
pursuant to a Registration Statement, in any such jurisdiction where they are
not then so subject.
(h) The Company and the Guarantors shall cooperate with the
Holders of Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request.
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(i) Upon the occurrence of any event contemplated by Sections
4(c)(ii) through (v) above during the period of time in which the Company is
required to maintain an effective Registration Statement, the Company and the
Guarantors shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus
or file any other required document so that, as thereafter delivered to initial
purchasers of the securities included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Each Holder agrees by acquisition of
any Securities that, upon receipt of a Suspension Notice from the Company of the
happening of any event of the kind described in Sections 4(c)(ii) through (v),
such Holder will forthwith discontinue disposition of Securities until such
Holder's receipt of the copies of the supplemented or amended Prospectus, 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 which are incorporated by reference in the Prospectus. If
so directed by the Company, such Holder will deliver to the Company all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Securities current at the time of receipt of such
notice. In the event the Company shall give any such Suspension Notice, the
period of effectiveness of the Demand Registration Statement provided for in
Section 2 and the Shelf Registration Statement provided for in Section 3(b)
shall each be extended by the number of days from and including the date of the
giving of the Suspension Notice to and including the date when the Holders of
the Securities shall have received such amended or supplemented Prospectus or
the Advice. The Company shall use its commercially reasonable efforts and take
such actions as are reasonably necessary to render the Advice as promptly as
practicable.
(j) The Company and the Guarantors shall cause the Indenture
to be qualified under the Trust Indenture Act in a timely manner.
(k) The Company and the Guarantors may require each Holder of
Securities to be sold pursuant to any Registration Statement to furnish to the
Company and the Guarantors such information regarding the Holder and the
distribution of such Securities as the Company and the Guarantors may from time
to time reasonably require for inclusion in such Registration Statement. The
Company and the Guarantors may exclude from such Registration Statement the
Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(l) In the case of any Registration Statement, the Company and
the Guarantors shall enter into such agreements and take all other appropriate
actions (including if requested an underwriting agreement in customary form) in
order to expedite or facilitate the registration or the disposition of the
Securities, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section 6.
(m) The Company and the Guarantors shall make reasonably
available for inspection by the Holders of Securities to be registered
thereunder, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
the Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries
as is customary for similar due diligence examinations; provided, however, that
the foregoing inspection and information gathering shall be coordinated on
behalf of the Holders by you and on behalf of the other parties referred to
herein by the counsel designated by and on behalf of such other parties as
described in Section 5 hereof; and provided, further, that any information that
is designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by the Holders
or any such
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underwriter, attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality.
(n) The Company and the Guarantors shall make such
representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings.
(o) The Company and the Guarantors shall obtain opinions of
counsel and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders
and underwriters, if any.
(p) The Company shall obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings.
(q) The Company shall deliver such documents and certificates
as may be reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with Section 4(i)
and with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company and the Guarantors.
(r) The Company and the Guarantors will use their respective
reasonable best efforts (i) if the Securities have been rated prior to the
initial sale of such Securities, to confirm such ratings will apply to the
Securities covered by a Registration Statement; or (ii) if the Securities were
not previously rated, to cause the Securities covered by a Registration
Statement to be rated with at least one nationally recognized statistical rating
agency, if so requested by Majority Holders with respect to the related
Registration Statement or by any Managing Underwriters.
(s) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company and the Guarantors shall assist such Broker-Dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in
such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
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(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
(t) The Company and the Guarantors shall use their respective
reasonable best efforts to take all other steps necessary to effect the
registration of the Securities covered by a Registration Statement.
(u) The actions set forth in clauses (n), (o), (p) and (q) of
this Section shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
5. Special Interest. If (a) on or prior to the 90th day
following the date a registration request is submitted under Section 2(a) or
Section 3(a), the Demand Registration Statement or Shelf Registration Statement,
as applicable, has not been filed with the Commission, (b) on or prior to the
180th day following the date a registration request is submitted under Section
2(a) or Section 3(a) , the Demand Registration Statement or Shelf Registration
Statement, as applicable, has not been declared effective by the Commission or
(c) after either the Demand Registration Statement or the Shelf Registration
Statement has been declared effective, such Registration Statement thereafter
ceases to be effective or usable in connection with resales of Securities in
accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) through (c) a "REGISTRATION DEFAULT"), interest
("SPECIAL INTEREST") will accrue on the principal amount of the 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, that in the event of
the occurrence of a Registration Default specified in subsection (c), Special
Interest shall not be payable for any period after May 25, 2003 during which the
Registration Default occurs. 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 5 shall not constitute the exclusive
remedy of the Holders for the Company's and the Guarantor'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 Holders shall be entitled
to specific performance of the agreements and obligations of the Company and the
Guarantors hereunder and to such other injunctive or other equitable relief as
may be granted by a court of competent jurisdiction.
6. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its and the Guarantors
obligations under Sections 2, 3 and 4 hereof and will reimburse the Holders for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith.
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Holder of Securities covered by any
Registration Statement, the directors, officers, employees and agents of each
such Holder and each Person who controls any such Holder within the meaning of
either the 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 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
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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 and the Guarantors 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 written
information furnished to the Company and the Guarantors by or on behalf of any
such Holder specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company and the Guarantors may otherwise
have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to Losses of any
underwriter of any Securities registered under a Registration Statement, their
directors, officers, employees or agents and each Person who controls such
underwriter (within the meaning of the Act or the Exchange Act) on substantially
the same basis as that of the indemnification of the selling Holders provided in
this Section 7(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(l)
hereof.
With respect to any untrue statement or omission of material
fact made in any preliminary Prospectus, the indemnity agreement contained in
this Section 7(a) shall not inure to the benefit of any indemnified person from
whom the person asserting any such loss, claim, damage or liability purchased
the securities concerned, to the extent that any such loss, claim, damage or
liability of such indemnified person occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
non-appealable judgment that (w) the Company had previously furnished copies of
the Final Prospectus to such indemnified person, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the preliminary Prospectus
was corrected in the Final Prospectus and (z) there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
securities to such person, a copy of the Final Prospectus.
(b) Each Holder of securities covered by a Registration
Statement severally agrees to indemnify and hold harmless the Company and the
Guarantors, each of their directors, each of their officers who sign such
Registration Statement and each Person who controls the Company or any of the
Guarantors within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantors to each
such Holder, but only with reference to written information relating to such
Holder furnished to the Company or the Guarantors by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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
10
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) In the event that the indemnity provided in paragraph (a)
or (b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the amount paid or payable
by such indemnified party as a result of the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "LOSSES") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided, however,
that in no case shall any Holder of any Security be responsible, in the
aggregate, for any amount in excess of the amount by which the net proceeds
received from the sale of such Security exceeds the amount of damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Guarantors shall be deemed to be equal
to the total net proceeds from the Initial Placement (before deducting
expenses). Benefits received by any Holders shall be deemed to be equal to the
proceeds received from the sale of the Securities. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
11
paragraph (d), 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
this Section, each Person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
Person who controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act, each officer of the Company or any of the
Guarantors who shall have signed the Registration Statement and each director of
the Company or any of the Guarantors shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company and the Guarantors or any of the officers, directors or
controlling Persons referred to in this Section hereof, and will survive the
sale by a Holder of securities covered by a Registration Statement.
8. Underwritten Registrations.
If any of the Securities covered by any Registration Statement
are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders and shall be reasonably acceptable to the
Company.
No Person may participate in any underwritten offering
pursuant to any Registration Statement, unless such Person (i) agrees to sell
such Person's Securities on the basis reasonably provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements; and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Private Placement. In the event a Registration Statement is
not effective for the offer and sale of the Securities on March 19, 2003 or is
thereafter suspended or not available for resales of the Securities, then,
during any period that a Registration Statement is not effective, or is
suspended or otherwise not available for resales, upon the request of ConAgra,
the Company and the Guarantors will reasonably cooperate, and shall instruct
their independent accountants to reasonably cooperate, with ConAgra in order for
ConAgra to sell the Securities in a private placement by May 1, 2003, including
providing reasonable assistance in the preparation of a private placement
memorandum. The purchasers of the Securities who acquire the Securities from
ConAgra in such private placement shall be deemed to be Holders for purposes of
this Agreement.
10. No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
11. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Holders representing a
majority of the aggregate
12
principal amount of the Securities being sold rather than registered under such
Registration Statement, voting together as a single class.
12. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
(b) if to you, initially at the address set forth above; and
(c) if to the Company or the Guarantors, at the following
address:
Swift & Company
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
All such notices and communications shall be deemed to have
been duly given when received. The Company or the Guarantors by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
13. Third Party Beneficiaries. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Securities who acquires
Securities directly from ConAgra, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
14. Counterparts. This agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
15. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
17. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it
13
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
18. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
Affiliates (other than Holders of Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
14
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and you.
Very truly yours,
SWIFT & COMPANY
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S&C HOLDCO 3, INC.
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
SWIFT BEEF COMPANY
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
SWIFT PORK COMPANY
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
SWIFT BRANDS COMPANY
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX BROS. CO., INC.
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
15
XXXXXXX FOOD DISTRIBUTION COMPANY
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXXXXX INTERNATIONAL SALES CORPORATION
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXXXXX, INC.
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
16
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
By: CONAGRA FOODS, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Representative
17
