EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 9, 2007, by and between DAKOTA GROWERS PASTA COMPANY, INC., a
North Dakota corporation (the "Company"), and MVC CAPITAL, INC. (the
"Purchaser").
This Agreement is made pursuant to the Stock Purchase Agreement, dated as
of February 9, 2007 (the "Stock Purchase Agreement"), by and between the
Company, Purchaser and La Bella Holdings, LLC, pursuant to which the Company is
issuing and selling 1,000,000 shares of its Series F Convertible Preferred
Stock, par value $.01 per share (the "Shares") to Purchaser.
The Shares are being offered and sold to Purchaser without registration
under the Securities Act of 1933, as amended (the "Securities Act"), in reliance
upon the exemption from registration provided by Section 4(2) of the Securities
Act and the provisions of Rule 506 of Regulation D, promulgated under the
Securities Act. In order to induce Purchaser to enter into the Stock Purchase
Agreement, the Company has agreed to provide to Purchaser (and their direct and
indirect permitted transferees, if any) the registration rights set forth in
this Agreement with respect to the resale of the Shares. The execution and
delivery of this Agreement is a condition to the Closing under the Stock
Purchase Agreement. Capitalized terms used but not defined herein shall have the
meaning provided in the Stock Purchase Agreement.
In consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
SECTION 1
Registration Rights
1.1. Filing of Form S-3 Resale Registration Statement. For so long as
Purchaser or an assignee of Purchaser owns any of the Shares, and in its
reasonable judgment determines that there is a public market on which it could
efficiently sell Registrable Securities (as hereinafter defined) if they were
registered pursuant to the Securities Act, Purchaser (or any such assignee)
shall have the right to require the Company to prepare and file with the
Securities and Exchange Commission (the "SEC" or the "Commission") a
registration statement in accordance with the terms of this Agreement. Purchaser
may exercise such right by providing the Company with written notice requesting
that the Company file a registration statement as required by this Agreement. As
soon as practicable following its receipt of such notice, the Company shall file
with the SEC a registration statement on Form S-3 pursuant to Rule 415 under the
Securities Act (together with any exhibits, amendments or supplements thereto,
and any documents incorporated by reference therein, the "Registration
Statement"), with respect to the resale of the Shares, and any securities of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Shares. The securities described in the
preceding sentence are collectively referred to herein as the "Registrable
Securities".
1.2. Effectiveness of Registration Statement. The Company shall, subject
to Section 6 hereof, use its best efforts to cause the Registration Statement to
become effective as soon as practicable and in no event later than three (3)
months after the date of filing of the Registration Statement, and shall use its
commercially reasonable best efforts to keep the Registration Statement
continuously effective from the date such Registration Statement becomes
effective until the earlier of (i) the date on which all Shares have been resold
under such Registration Statement and (ii) the date on which all Registrable
Securities may be resold without restriction or limitation. The obligations
under this Section 1.2 will not apply to any delay or complication caused in
whole or in part by Purchaser.
1.3. Supplements; Amendments. Subject to Section 6 hereof, the Company
shall supplement or amend the Registration Statement, (i) as required by Form
S-3, including, without limitation, the instructions applicable to Form S-3, or
by the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the rules and regulations promulgated under the Securities
Act or the Exchange Act, respectively, and (ii) to include in the Registration
Statement any additional securities that become Registrable Securities by
operation of the definition thereof. The Company shall furnish to the holders of
the Registrable Securities, or their permitted transferees, as appropriate
(collectively, the "Holders"), to which the Registration Statement relates
copies of any such supplement or amendment sufficiently in advance (but in no
event less than five (5) business days in advance) of its use and/or filing with
the Commission to allow the Holders a meaningful opportunity to comment thereon
with respect to the information contained therein regarding the Holders and any
plan for resale of the Registrable Securities. The Holders acknowledge or shall
acknowledge that they have supplied the information regarding themselves and
their plan of resale in the Registration Statement within five (5) business days
prior to the filing of the Registration Statement and hereby waive or shall
waive any notice of the initial filing of the Registration Statement, and such
Holders and their successors and assigns shall promptly notify the Company of
any changes in such information.
SECTION 2
Expenses
The Company shall pay all expenses, fees and costs incurred in connection
with the preparation, filing, distribution and effectiveness of the Registration
Statement and any supplements or amendments thereto, whether or not the
Registration Statement becomes effective, and whether all, none or some of the
Registrable Securities are sold pursuant to the Registration Statement,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, fees and state
securities, or "blue sky," fees and expenses, and the expense of any special
audits incident to or required by, or in connection with the filing and
effectiveness of the Registration Statement. In addition, the Company shall pay
all fees and disbursements of one counsel for the Holders in connection with the
preparation, filing, distribution and effectiveness of the Registration
Statement and any supplements or amendments thereto, whether or not the
Registration Statement becomes effective, and whether all, none or some of the
Registrable Securities are sold pursuant to the Registration Statement. The
Holders shall pay all underwriting fees and discounts, selling commissions,
brokerage fees and stock transfer taxes applicable to the Registrable Securities
sold by such Holder and the fees and expenses of any counsel of theirs in
addition to the counsel for the Holders whose fees and disbursements are to be
paid by the Company.
SECTION 3
Registration Procedures
3.1. Registration. The Company will, from time to time, advise the Holders
as to the status of the preparation, filing and effectiveness of the
Registration Statement and, at the Company's expense, will do the following:
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(a) furnish to each Holder a copy of the Registration Statement
(including all exhibits thereto) and any prospectus forming a part thereof
and any amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of the Registration Statement and including each preliminary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, which documents, other than documents incorporated or
deemed incorporated by reference, will be subject to the review of the
Holders and any such underwriter for a period of at least three (3)
business days, and the Company shall not file the Registration Statement
or such prospectus or any amendment or supplement to the Registration
Statement or prospectus if any Holder shall reasonably object within three
(3) business days after the receipt thereof. A Holder shall be deemed to
have reasonably objected to such filing only if the Registration
Statement, amendment, prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission with respect to
such Holder or its plan of resale;
(b) furnish to each Holder one conformed copy of the Registration
Statement and of each amendment and supplement thereto (in each case
including all exhibits) and such number of copies of the prospectus
forming a part of the Registration Statement (including each preliminary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, including, without limitation, documents
incorporated or deemed to be incorporated by reference prior to the
effectiveness of such Registration Statement, as each of the Holders or
any such underwriter, from time to time may reasonably request;
(c) to the extent practicable, promptly upon the filing of any
document that is to be incorporated by reference into the Registration
Statement or prospectus forming a part thereof subsequent to the
effectiveness thereof, and in any event no later than five (5) business
days after such document is filed with the Commission, provide copies of
such document to the Holders, if requested, and make representatives of
the Company available for discussion of such document and other customary
due diligence matters; and provide promptly to the Holders upon request
any document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act;
(d) make available at reasonable times for inspection by the
Holders, and any attorney, accountant, financial adviser or other
representative (collectively, "Representatives") retained by the Holders,
subject to the recipient's prior written agreement to keep such
information confidential and not use or disclose it, all financial and
other records, pertinent corporate documents and properties of the Company
and cause the officers, directors and employees of the Company to supply
all information reasonably requested by the Holders or their respective
Representatives in connection with the preparation, filing and
effectiveness of the Registration Statement;
(e) use its commercially reasonable best efforts (i) to register or
qualify all Registrable Securities covered by the Registration Statement
under state securities, or "blue sky," laws of such States of the United
States of America where required and where an exemption is not available
and as the Holders of Registrable Securities covered by the Registration
Statement shall reasonably request, (ii) to keep such registration or
qualification in effect for so long as the Registration Statement is
required to be effective hereunder, and (iii) to take any other action
which may be reasonably necessary or advisable to enable the Holders to
consummate the disposition of the securities to be sold by the Holders in
such jurisdictions, consistent with the plan of distribution described in
the prospectus included in the Registration Statement, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where it is not
so qualified, or to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except as
may be required by the Securities Act or applicable rules or regulations
thereunder;
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(f) use its commercially reasonable best efforts to cause all
Registrable Securities covered by the Registration Statement to be
registered or qualified with or approved by all other applicable
Governmental Authorities as may be necessary, in the opinion of counsel to
the Company and counsel to the Holders of Registrable Securities, to
enable the Holders thereof the consummate the disposition of such
Registrable Securities;
(g) subject to Section 6 hereof, promptly notify each Holder of
Registrable Securities covered by the Registration Statement (i) upon
discovery that, or upon the occurrence of any event as a result of which,
the prospectus forming a part of the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits 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, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of proceedings for that purpose, (iii) of any request by
the Commission for (A) amendments to the Registration Statement or any
document incorporated or deemed to be incorporated by reference in the
Registration Statement, or (B) supplements to the prospectus forming a
part of the Registration Statement, or (C) additional information, or (iv)
of the receipt by the Company of any notification with respect to the
suspension of the registration, qualification or exemption from
registration or qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such
purpose, and at the request of any such Holder promptly prepare and file
an amendment to the Registration Statement or a supplement to the
prospectus as the Company may deem necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include 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, in the light of the circumstances under which they were made, not
misleading; and furnish to each Holder a reasonable number of copies of
such supplement to, or amendment of, such registration statement and
prospectus, and, in the event of a stop order, use its commercially
reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of any 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;
(h) if reasonably requested by any Holder or if required by law or
SEC or other applicable rule or regulation, promptly incorporate in the
Registration Statement such appropriate information as the Holder may
reasonably request to have included therein by filing a Form 8-K, or
filing a supplement to the prospectus, to reflect any change in the
information regarding the Holder, and make all required filings with the
Commission in respect of any offer or sale of Registrable Securities or
any amendment or supplement to the Registration Statement or related
prospectus;
(i) otherwise use its commercially reasonable best efforts to comply
with all applicable rules and regulations, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first full calendar month after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder and to provide promptly to the Holders upon request any
document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act; and
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(j) use its commercially reasonable best efforts to cause all
Registrable Securities included in the Registration Statement to be
eligible for trading in any over-the-counter market or trading system in
which securities of the same class are then traded.
SECTION 4
Indemnification
4.1. Indemnification by the Company. The Company will indemnify:
(a) each of the Holders, as applicable,
(b) each of the Holder's officers, directors, members and
partners, and
(c) each individual, partnership, joint stock company,
corporation, trust, unincorporated organization, government
agency or political subdivision (each of the foregoing, a
"Person") controlling each of the Holders within the meaning
of SEC Rule 405 under the Securities Act,
with respect to the Registration Statement, against all expenses, claims,
losses, damages and liabilities (or actions, investigations or proceedings in
respect thereof) (collectively, a "Claim") arising out of or based on any actual
or alleged untrue statement of a material fact, or any omission of a material
fact required to be stated therein or necessary in order to make the statements
included therein not misleading, contained in the Registration Statement, any
prospectus or other offering document (including any related registration
statement, notification or the like) incident to the registration, qualification
or compliance, or any violation by the Company of the Securities Act or the
Exchange Act or any other laws or any rule or regulation thereunder applicable
to the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each of the Holders, each of its officers, directors, members and
partners, and each Person controlling each of the Holders, for any legal and any
other expenses reasonably incurred in connection with investigating and
defending any such Claim; provided, however, that the Company will not be liable
in any such case to the extent that any such Claim (i) arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company by the Holders or their Representatives and stated to be
specifically for use therein, or (ii) is finally judicially determined to have
resulted primarily from the gross negligence or willful misconduct of any person
or entity set forth in subsections (a) through (c) above.
4.2. Indemnification by the Holders. Each of the Holders will, if
Registrable Securities held by it are included in the securities as to which
such Registration Statement is being effected, indemnify the Company, each of
its directors and officers, and each Person who "controls" the Company within
the meaning of SEC Rule 405 under the Securities Act, against all Claims arising
out of or based on any actual or alleged untrue statement of a material fact, or
any omission or a material fact required to be stated therein or necessary in
order to make the statement included or incorporated therein not misleading,
contained in the Registration Statement, prospectus, or other offering document
made by or on behalf of such Holder, and will reimburse the Company, its
directors, officers, partners, members or control Persons for any legal or any
other expenses reasonably incurred in connection with investigating and
defending any such Claim, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in the Registration Statement, prospectus or other document in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder and stated to be specifically for use
therein; provided, however, that the indemnity obligations of each of the
Holders hereunder shall be limited to an amount equal to the net proceeds
received by such Holder from the sale of the Registrable Securities pursuant to
the Registration Statement; and provided, further, that the only information
that a Holder will be required to furnish to the Company for use in any
Registration Statement or prospectus relating to the Registrable Securities, or
in any amendment, supplement or preliminary materials associated therewith will
be statements specifically relating to (a) the beneficial ownership of Company
securities by such Holder and its affiliates and (b) the name and address of
such Holder. In no event shall a Holder be jointly liable with any other Holder
as a result of its indemnification obligations.
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4.3. Procedures. Each party entitled to indemnification under this
Agreement (each, an "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any Claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such Claim; provided that counsel for the Indemnifying Party, who shall conduct
the defense of such Claim, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the Indemnifying Party), and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party,
in the investigation or defense of any such Claim shall, except with the consent
of each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement or
compromise which does not include an unconditional release of the Indemnified
Party from all liability in respect to such Claim. Each Indemnified Party shall
furnish such information regarding itself or the Claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the investigation and defense of such Claim.
4.4. Contribution. If the indemnification provided for in this Agreement
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any Claim, 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 is 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 Claim, as well as any other relevant equitable considerations; provided,
however, that the Company will not be liable in any such case to the extent that
any such Claim (i) arises out of or is based on any untrue statement or omission
based upon written information furnished to the Company by the Holders or their
Representatives and stated to be specifically for use therein, or (ii) is
finally judicially determined to have resulted primarily from the gross
negligence or willful misconduct of any person or entity set forth in Section
4.1(a)-(c) above. 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, and provided that each Holder shall not be
required to contribute more than the net proceeds received by such Holder from
the sale of the Registrable Securities pursuant to the Registration Statement.
Notwithstanding anything to the contrary set forth herein, no party shall be
liable for contribution under this Section 4.4 except to the extent and under
such circumstances as such party would have been liable for indemnification
under Section 4.2 hereof if such indemnification were enforceable under
applicable law.
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SECTION 5
Plan of Distribution; Information Regarding the Holders
Each of the Holders agrees that the plan of distribution included in any
prospectus relating to the Registrable Securities shall be as set forth on
Schedule A-1 hereto and that such Holder will not resell any Registrable
Securities pursuant to the Registration Statement in any manner other than as
provided therein or herein. Each Holder represents, warrants and covenants to
the Company that the information regarding such Holder that appears in the Stock
Purchase Agreement and/or Schedule A-2 is accurate and complete in all material
respects consistent with Commission Regulation S-K, Items 507 and 508. The
Purchaser will confirm promptly by delivery of a signed copy of Schedule A-2,
the sale of any Shares pursuant to Rule 144 or the Registration Statement.
SECTION 6
Holdback; Postponement
Notwithstanding the other provisions of this Agreement, if (a) there is
material non-public information regarding the Company which the Company's Board
of Directors reasonably and in good faith determines not to be in the Company's
best interest to disclose and which the Company is not otherwise required to
disclose, or (b) there is a extraordinary business opportunity (including but
not limited to the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or other
similar extraordinary transaction not in the ordinary course of business)
available to the Company which the Company's Board of Directors reasonably and
in good faith determines not to be in the Company's best interest to disclose,
then the Company may (upon not less than two trading days prior written notice
by same day delivery of fax or hand delivery) postpone or suspend filing or
effectiveness of a registration statement for a period not to exceed 90 days,
provided that the Company may not postpone or suspend filing or effectiveness of
a registration statement for more than 180 days in the aggregate during any
365-day period and there shall be an aggregate of not more than two (2)
suspensions during any 365-day period; provided, however that no postponement or
suspension shall be permitted for consecutive 90 day periods arising out of the
same set of facts, circumstances or transactions.
SECTION 7
Rule 144 Reporting, Etc.
7.1. SEC Reporting Compliance.
(a) With a view to making available the benefits of certain rules
and regulations of the Commission which may at any time permit the sale of the
Registrable Securities to the public without registration, through the second
anniversary of this Agreement, the Company will:
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(i) make and keep "current public information" regarding the
Company available, as defined in Commission Rule 144(c) under the
Securities Act;
(ii) use its commercially reasonable best efforts to file with
the Commission in a timely manner all SEC Reports and other filings
and documents required of the Company under the Securities Act and
the Exchange Act and otherwise; and
(iii) so long as a Holder owns any Registrable Securities,
furnish the Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements under
the Securities Act and the Exchange Act, including compliance with
SEC Rule 144(c), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company and other information in the possession of, or reasonably
obtainable by, the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
(b) The Company shall use its commercially reasonable best efforts
to file the reports required to be filed by it under the Exchange Act and shall
comply with all other requirements set forth in the instruction to Form S-3 in
order to allow the Company to be eligible to file registration statements on
Form S-3.
7.2. Stock Purchase Agreement Covenants. The Company will comply with its
covenants under Section 4 of the Stock Purchase Agreement, which are
incorporated herein by this reference.
SECTION 8
Miscellaneous
8.1. Assignment. The registration rights set forth herein may be assigned,
in whole or in part, to any transferee of Registrable Securities permitted in
accordance with the Stock Purchase Agreement, which transferee, upon
registration on the Company's or its transfer agent's books and records as a
holder of record of Registrable Securities, shall be considered thereafter to be
a Holder (provided that any transferee who is not an affiliate of Purchaser
shall be a Holder only with respect to such Registrable Securities so acquired
and any stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Registrable
Securities) and shall be bound by all obligations and limitations of this
Agreement and the Stock Purchase Agreement.
8.2. Section Headings. The titles and headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
8.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
8.4. Notices.
(a) All communications under this Agreement shall be in writing and
shall be delivered by facsimile, by hand, by reliable overnight delivery
service such as UPS or FedEx or by registered or certified mail, postage
prepaid:
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(i) if to the Company, to Dakota Growers Pasta Company, Inc.
Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X.
Xxxx, Facsimile: (000) 000-0000, or at such other address as it may
have furnished in writing to Purchaser;
(ii) if to Purchaser, at MVC Capital, Inc., 000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx,
Facsimile: (000) 000-0000, or at such other addresses as may have
been furnished the Company in writing.
(b) Any notice so addressed shall be deemed to be given (i) if
delivered by hand, on the date of such delivery, (ii) if sent by reliable
overnight delivery service such as UPS or FedEx, on the first business day
following the date of delivery to such service for overnight delivery,
(iii) if delivered by facsimile, on the date of such facsimile, or (iv) if
mailed by registered or certified mail, on the third business day after
the date of such mailing.
8.5. Successors and Assigns; No Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties. No other person is intended to or shall have any
rights or remedies hereunder, whether as a third part beneficiary or otherwise.
8.6. Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original and all of which shall
be one and the same agreement. Any signature that is delivered by facsimile
signature page shall be valid and binding, with the same force and effect as if
an original, manually signed counterpart.
8.7. Remedies. Each Holder of Registrable Securities, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
8.8. Severability. In the event that any provision contained herein is
unenforceable, the remaining provisions shall continue in full force and effect.
8.9. Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to the Holders, upon any breach or
default of the Company under this Agreement, shall impair any such right, power
or remedy, nor shall it be construed to be a waiver of any provision hereof, or
of any similar breach or default thereafter occurring; nor shall any wavier of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind or character by a Holder of any breach
or default under this Agreement, or any waiver by a Holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in the writing, and that all remedies, either
under this Agreement, or by law or otherwise afforded to a Holder, shall be
cumulative and not alternative.
8.10. Attorney's Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
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8.11. Entire Agreement; Amendment. This Agreement and the Stock Purchase
Agreement and the other documents contemplated therein constitute the entire
understanding and agreement of the parties with respect to the subject matter
hereof and supersede all prior understandings, written or otherwise, among such
parties. This Agreement may be amended only in a writing signed by the Company
and the Holders of a majority of the then outstanding Registrable Securities.
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the day and year first set forth above.
Dakota Growers Pasta Company, Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
MVC Capital, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman
