EXHIBIT 4.4
EXECUTION VERSION
SWIFT & COMPANY
12 1/2% SENIOR SUBORDINATED NOTES DUE JANUARY 1, 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 26, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
ConAgra Foods, Inc., a corporation organized under the laws of the
State of Delaware (the "SELLING NOTEHOLDER"), proposes to sell to Xxxxxxx Xxxxx
Xxxxxx Inc. and X.X. Xxxxxx Securities Inc. (the "INITIAL PURCHASERS")
$150,000,000 aggregate principal amount of 12 1/2% Senior Subordinated Notes due
January 1, 2010 (the "NOTES" and, together with the Guarantees (as defined
below), the "SECURITIES") issued by Swift & Company, a corporation organized
under the laws of the State of Delaware (the "COMPANY"), upon the terms set
forth in a Purchase Agreement, dated as of March 21, 2003, between the Selling
Noteholder, the Company, S&C Holdco 3, Inc., the subsidiary guarantors signatory
thereto and the Initial Purchasers (the "PURCHASE AGREEMENT") relating to the
initial placement of the Securities (the "INITIAL PLACEMENT"). The Notes are
guaranteed (the "GUARANTEES") 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"). An affiliate of the Selling
Noteholder (the "CONAGRA AFFILIATE") has agreed to purchase from the Initial
Purchasers, and the Initial Purchasers have agreed to sell to the ConAgra
Affiliate, $30,000,000 in principal amount of the Notes (the "CONAGRA NOTES").
To induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Company and the
Guarantors agree with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchasers and the ConAgra
Affiliate) (each a "HOLDER" and, together, the "HOLDERS"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"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.
"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.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result
of market-making activities or other trading activities (but not directly from
the Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"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.
"Initial Purchaser" 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.
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"New Securities" shall mean debt securities of the Company and the
Guarantors identical in all material respects to the Securities (except that the
cash interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the Company,
the Guarantors and the New Securities Trustee, identical in all material
respects to the Indenture (except that the cash interest and interest rate
step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under The New Securities Indenture.
"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 or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in such case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference Therein.
"Second Private Placement" shall mean a private placement of the
ConAgra Notes.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b)(ii) 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 or New Securities,
as applicable, 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.
"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 Shelf Registration Statement.
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2. Registered Exchange Offer.
(a) The Company and the Guarantors shall prepare and, not
later than 270 days following the date of the sale of the Securities (or if such
270th day is not a Business Day, the next succeeding Business Day), shall file
with the Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Company and the Guarantors shall use their
respective reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective under the Act within 360 days of the date of the
sale of the Securities (or if such 360th day is not a Business Day, the next
succeeding Business Day); provided, however, that the Company and the
Guarantors may not, without the prior written consent of ConAgra, file the
Exchange Offer Registration Statement prior to the earlier of (i) notification
from ConAgra of the completion of the Second Private Placement or (ii) 180 days
following the sale of the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Company, acquires the New Securities
in the ordinary course of such Holder's business, has no arrangements with any
Person to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not
less than 20 Business Days and not more than 30 Business Days after the
date notice thereof is mailed to the Holders (or, in each case, longer
if required by applicable law);
(iii) use their respective reasonable best efforts to
keep the Exchange Offer Registration Statement continuously effective
under the Act, supplemented and amended as required under the Act, to
ensure that it is available for sales of New Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee, the New Securities Trustee
or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, if requested by the Commission, provide a
supplemental letter to the
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Commission (A) stating that the Company and the Guarantors are
conducting the Registered Exchange Offer in reliance on the position of
the Commission in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991);
and (B) including a representation that the Company and the Guarantors
have not entered into any arrangement or understanding with any Person
to distribute the New Securities to be received in the Registered
Exchange Offer and that the Company and the Guarantors will not issue
New Securities to any Holder participating in the Registered Exchange
Offer who fails to certify to the Company that such Holder is acquiring
the New Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the New Securities; and
(vii) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and The Guarantors shall:
(i) accept for exchange all Securities tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 5(s) all Securities so accepted for exchange;
and
(iii) cause the Trustee or the New Securities
Trustee, as the case may be, promptly to authenticate and deliver to
each Holder of Securities a principal amount of New Securities equal to
the principal amount of the Securities of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities, if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates, (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and such transaction must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the Act.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent in writing to the Company and the Guarantors that, at the
time of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will
be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the
Securities or the New Securities within the meaning of the Act; and
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(iii) such Holder is not an Affiliate of the Company
or any of the Guarantors (or if it is, that it will comply with the
registration and prospectus delivery requirements of the Act to the
extent applicable).
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company and the Guarantors shall issue
and deliver to such Initial Purchaser or the Person purchasing New Securities
registered under a Shelf Registration Statement as contemplated by Section 3
hereof from such Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company and the Guarantors shall use
their respective best efforts to cause the CUSIP Service Bureau to issue the
same CUSIP number for such New Securities as for New Securities issued pursuant
to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; or (ii) for any other reason
the Exchange Offer Registration Statement is not declared effective by the
Commission under the Act within 360 days of the date of the sale of the
Securities or the Registered Exchange Offer is not consummated within 30
Business Days of the date of the effectiveness of the Exchange Offer
Registration Statement; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is
not eligible to participate in the Registered Exchange Offer or does not receive
freely tradable New Securities in the Registered Exchange Offer (it being
understood that the requirement that a participating Broker-Dealer deliver the
prospectus contained in the Exchange Offer Registration Statement in connection
with sales of New Securities shall not result in such New Securities being not
"freely tradable"); or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires New Securities
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable New Securities in exchange for Securities constituting any portion of
an unsold allotment, other than by reason of such Holder being an Affiliate of
the Company (it being understood that (x) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item 507
or 508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall not result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company and the Guarantors shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (i) The Company and the Guarantors shall as promptly as
practicable (but in no event more than 90 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter shall use
their respective reasonable best efforts to cause to be declared effective under
the Act a Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, 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; provided, however,
that no Holder (other than an Initial Purchaser) shall
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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; and provided further,
that with respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the Company and
the Guarantors may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Item 507 or 508 of Regulation
S-K, as applicable, in satisfaction of their obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(ii) 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 date the Shelf
Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Securities or New
Securities, as applicable, 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 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 5(k) hereof, if
applicable.
(iii) 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. Special Interest. If (a) on or prior to the 270th day following the
sale of the Securities, the Exchange Offer Registration Statement has not been
filed with the Commission or on or prior to the 90th day after the obligation to
file the Shelf Registration Statement has arisen, the Shelf Registration
Statement has not been filed with the Commission, (b) on or prior to the 360th
day following the sale of the Securities, the Exchange Offer Registration
Statement has not been declared effective by the Commission, (c) on or prior to
the 30th Business Day following the date the Exchange Offer Registration
Statement is declared effective, the Registered Exchange Offer has not been
consummated, or (d) after either the Exchange Offer 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 or New Securities in accordance with and during the periods
specified in this Agreement (each such event referred to in clauses (a) through
(d), a ("REGISTRATION DEFAULT"), interest ("SPECIAL INTEREST") will accrue on
the principal amount of the Securities and the New Securities (in addition to
the stated interest on the Securities and New Securities) from and including
the date on which
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any such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. 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.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
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 Exchange
Offer Registration Statement and any Shelf 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;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration Statement,
in Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus contained in the Exchange Offer Registration Statement,
and in Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include
the information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell Securities
pursuant to the Shelf 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.
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(c) The Company and the Guarantors shall advise you, the
Holders of Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to the Company and the Guarantors a telephone or facsimile
number and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant
to clauses (ii) through (v) hereof shall be accompanied by an instruction 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;
(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 Shelf Registration Statement, without
charge, at least one copy of such Shelf 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, deliver to each Holder of Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf 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 Shelf
Registration Statement.
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(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer which so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including all material incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(h) The Company and the Guarantors shall promptly deliver to
each Initial Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company and the Guarantors consent to the use
of the Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be required
to deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or New Securities pursuant to any Registration Statement,
the Company and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New 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, the Registered
Exchange Offer or any offering pursuant to a Shelf Registration Statement, in
any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders of Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or 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.
(k) Upon the occurrence of any event contemplated by
subsections (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. In such circumstances, the period of
effectiveness of the Exchange Offer 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 a notice of suspension pursuant to Section 5(c) to and including the
date when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number for the
Securities or the New
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Securities, as the case may be, registered under such Registration Statement and
provide the Trustee or the New Securities Trustee, as the case may be, with
printed certificates for such Securities or New Securities, in a form eligible
for deposit with The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all
applicable rules and regulations of the Commission and shall make generally
available to their security holders as soon as reasonably practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Company and the Guarantors shall cause the Indenture
or the New Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
Securities or New Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of such Securities or New 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 Shelf Registration Statement the Securities or New Securities
of any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf 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 or New 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 7 (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 7.
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall:
(i) make reasonably available for inspection by the
Holders of Securities or New 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; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers 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 6 hereof;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
the Holders or any underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, 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 underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection
11
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;
(iii) make such representations and warranties to the
Holders of Securities or New 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 and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
the Guarantors 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;
(v) 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 or New 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; and
(vi) 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 5(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) 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.
(r) In the case of any Exchange Offer Registration Statement,
the Company and the Guarantors shall:
(i) make reasonably available for inspection by such
Initial Purchaser, and any attorney, accountant or other agent retained
by such Initial Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties referred to herein
by the counsel designated by on and behalf of such other parties as
described in Section 6 hereof;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
such Initial Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
12
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 such Initial
Purchaser or any such 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;
(iii) make such representations and
warranties to such Initial Purchaser, in form, substance and
scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to
such Initial Purchaser and its counsel, addressed to such
Initial Purchaser, covering such matters as are customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
Initial Purchaser or its counsel;
(v) 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 such Initial Purchaser in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings, or if requested by such Initial Purchaser or its
counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No.
35, covering matters requested by such Initial Purchaser or
its counsel; and
(vi) deliver such documents and certificates
as may be reasonably requested by such Initial Purchaser or
its counsel, including those to evidence compliance with
Section 5(k) and with conditions customarily contained in
underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be
consummated, upon delivery of the Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for
the New Securities, the Company shall xxxx, or caused to be marked, on
the Securities so exchanged that such Securities are being canceled in
exchange for the New Securities. In no event shall the Securities be
marked as paid or otherwise satisfied.
(t) 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 or the New Securities, as the case
may be, 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.
13
(u) 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 7 hereof; and
(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.
(v) 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 or the New Securities, as the
case may be, covered by a Registration Statement.
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 5 hereof and, in the event of any Shelf
Registration Statement, 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, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of one firm or counsel acting 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 or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), 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 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
14
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 or New Securities, as the case may
be, registered under a Shelf 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
Initial Purchasers and 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 5(p)
hereof.
With respect to any untrue statement or omission of material
fact made in any preliminary Prospects, 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 Prospects 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 (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer) 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
15
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) 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 Initial Purchaser of any Security or New Security be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into such
New Security, as set forth on the cover page of the Final Memorandum,
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, nor shall any Holder (other than the Initial
Purchasers) be responsible for any amount by which the net proceeds
received from the sale of such Security by such Holder exceeds the
amount of damages for which such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. 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 sum of the total net
proceeds from the initial sale (before deducting
16
expenses) of the Securities to the Selling Noteholder on September 19,
2002 pursuant to the Acquisition Agreement. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and, benefits received by any other Holders shall be deemed
to be equal to the proceeds received from the sale of the Securities or
New Securities, as applicable. 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 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.
(a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf 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.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless such
Person (i) agrees to sell such Person's Securities or New Securities,
as the case may be, 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. No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, 5% 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
17
10. 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; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. 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 or New Securities, as the case may be,
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 principal amount of the Securities or
the New Securities, as the case may be, being sold rather than registered under
such Registration Statement, voting together as a single class.
11. 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,
with a copy in like manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses
set forth in the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at
its respective address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, the Company or the Guarantors by
notice to the other parties may designate additional or different addresses for
subsequent notices or communications.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. 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.
14. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
15. 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.
18
16. Severability. In the event that any one or 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 being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than the
ConAgra Affiliate with respect to the Shelf Registration Statement or subsequent
Holders of Securities or New Securities if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
19
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 the several Initial Purchasers.
Very truly yours,
SWIFT & COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
S&C HOLDCO 3, INC.
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
SWIFT BEEF COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
SWIFT PORK COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
SWIFT BRANDS COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
XXXXXX BROS. CO., INC.
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
XXXXXXX FOOD DISTRIBUTION COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
SWIFT & COMPANY INTERNATIONAL SALES
CORPORATION
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
XXXXXXX, INC.
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
S&C RESALE COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc
X.X. Xxxxxx Securities Inc.
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ XXXX XXXXXXX
------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business 180
days after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business 180 days after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use
in connection with any such resale. In addition, until ___________, 200___, all
dealers effecting transactions in the New Securities may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by broker-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the
Company and the Guarantors will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Rider B
Name:
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Address:
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If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
