REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "AGREEMENT") is made as of
November 6, 2001, by and among Northland Cranberries, Inc., a Wisconsin
corporation (the "COMPANY"), Sun Northland, LLC, a Delaware limited liability
company ("SUN"), and each of the other Persons listed on the signature pages
attached hereto (the "OTHER INVESTORS"). Sun and the Other Investors are
collectively referred to herein as the "STOCKHOLDERS," and are individually
referred to herein as a "STOCKHOLDER." Otherwise undefined capitalized terms
used herein are defined in SECTION 9 hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Demand Registrations.
(a) REQUESTS FOR REGISTRATION. At any time, the holders of at
least a majority of the Sun Registrable Securities may request registration
under the Securities Act of all or any portion of such Sun Registrable
Securities on Form S-1 or any similar long-form registration ("LONG-FORM
REGISTRATIONS") or, if available, on Form S-2 or S-3 or any similar short-form
registration ("SHORT-FORM REGISTRATIONS"). All registrations requested pursuant
to this SECTION 1(a) are referred to herein as "DEMAND REGISTRATIONS." Each
request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of any such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and, subject to SECTION 1(d) below,
will include in such registration, in addition to the Sun Registrable Securities
that are requested to be registered pursuant hereto, all other Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) LONG-FORM REGISTRATIONS. The holders of a majority of the
Sun Registrable Securities shall be entitled to request a maximum of four (4)
Long-Form Registrations. The Company will pay all Registration Expenses (as
defined below in SECTION 5) in connection with each such Long-Form Registration.
All Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to SECTION 1(b), the holders of a majority of
the Sun Registrable Securities shall be entitled to request an unlimited number
of Short-Form Registrations in which the Company will pay all Registration
Expenses. Demand Registrations will be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. The Company shall use its
best efforts to make Short-Form Registrations on Form S-3 available for the sale
of Registrable Securities, if the Company is so eligible. The Company shall not
be obligated to effect a Short-Form Registration through an underwritten
offering.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability, proposed
offering price, timing, distribution method or probability of success of the
offering, the Company will include in such registration (i) first, the number of
Registrable Securities requested to be included in such registration which in
the opinion of such underwriters can be sold without adverse effect, pro rata
among the respective holders thereof on the basis of the number of Registrable
Securities owned by each such holder, and (ii) second, other securities
requested to be included in such Demand Registration, pro rata among the holders
of such securities on the basis of the number of such securities owned by each
such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not
be obligated to effect any Demand Registration within six months after the
effective date of a previous Long-Form Registration with respect to the Company.
The Company may postpone, for up to six months (from the date of the request),
the filing or the effectiveness of a registration statement for a Demand
Registration if (i) the Company's board of directors believes that such Demand
Registration would reasonably be expected to have an adverse effect on any
proposal or plan by the Company or any Subsidiary thereof to engage in any
underwritten public offering of its securities for its own account, acquisition
of assets (other than in the ordinary course of business) or any stock purchase,
merger, consolidation, tender offer, reorganization, or similar transaction, or
(ii) the Company is in possession of material nonpublic information concerning
it or its business and affairs and the Company's board of directors determines
in good faith that the prompt public disclosure of such information in a
registration statement would reasonably be expected to have an adverse effect on
the Company; provided, however, that in any such events, the holders of
Registrable Securities initially requesting such Demand Registration will be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall be treated as if it had never been made in the first
instance, and the Company will pay all Registration Expenses in connection with
such registration. The Company may delay a Demand Registration hereunder only
once in any 12-month period.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities initially requesting registration hereunder will have
the right to select the investment banker(s) and manager(s) to administer the
offering under such Demand Registration, subject to the Company's approval,
which will not be unreasonably withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company will not grant to any Persons the right to request that
the Company register any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for any such securities, without
the prior written consent of the holders of at least a majority of the
Registrable Securities.
2
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its equity securities under the Securities Act (other than
pursuant to a Demand Registration or a registration on Form S-4 or S-8 or any
successor or similar forms) and the registration form to be used may be used in
compliance with applicable law for the registration of Registrable Securities (a
"PIGGYBACK REGISTRATION"), whether or not for sale for its own account, the
Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and, subject to SECTIONS 2(c) AND
2(d) below, will include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. In all Piggyback Registrations, the
Registration Expenses of the holders of Registrable Securities will be paid by
the Company.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing (with a copy to each
party hereto requesting registration of Registrable Securities) that, in their
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability, proposed offering price, timing, distribution
method or probability of success of the offering, then the Company will include
in such registration (i) first, the securities that the Company proposes to
sell, (ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders thereof on the basis of the number of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration pro rata among the
holders of such securities on the basis of the number of such other securities
owned by each such holder.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (it being understood that secondary registrations on
behalf of holders of Registrable Securities are addressed in Section 1 above
rather than in this Section 2(d)), and the managing underwriters advise the
Company in writing that, in their opinion, the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability, proposed offering price,
timing, distribution method or probability of success of the offering, then the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration, (ii) second,
the Registrable Securities requested to be included in such registration, pro
rata among the holders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such requesting holder, and (iii) third,
other securities requested to be included in such registration pro rata among
the holders of such other securities on the basis of the number of such
securities owned by each such holder.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, then the selection of the investment banker(s) and
manager(s) for the offering shall be made at the Company's sole discretion.
3
(f) WITHDRAWAL BY COMPANY. If, at any time after giving notice
of its intention to register any of its securities as set forth in SECTION 2(a)
and before the effective date of such registration statement filed in connection
with such registration, the Company shall determine, for any reason, not to
register such securities, the Company may, at its sole discretion, give written
notice of such determination to each holder of Registrable Securities and
thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith as provided herein).
3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities agrees not to effect
any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities, options, or rights convertible
into or exchangeable or exercisable for such securities, during the seven days
before and the 180-day period beginning on the effective date of any
underwritten public offering of the Company's equity securities (including
Demand and Piggyback Registrations) (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree. If any holder of Registrable Securities is released from the
requirements of this SECTION 3(a), all other holders of Registrable Securities
shall be released from the requirements of this SECTION 3(a) on the same terms
and conditions as such holder.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days before
and during the 180-day period beginning on the effective date of any
underwritten public offering of the Company's equity securities (including
Demand and Piggyback Registrations) (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree, and (ii) to cause each holder of its Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, purchased or
otherwise acquired from the Company at any time after the date of this Agreement
(other than in a registered public offering, including, without limitation, an
offering registered on Form S-8 or any successor form) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during any such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof and, pursuant
thereto, the Company will as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period
within which requests for registration may be given to the Company) file with
the Securities and Exchange Commission a registration statement with respect to
such Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that, before
4
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents will be
subject to review of such counsel);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of either (i) not less than six
months (subject to extension pursuant to SECTION 7(b)) or, if such registration
statement relates to an underwritten offering, such longer period as in the
opinion of counsel for the underwriters a prospectus is required by law to be
delivered in connection with sales of Registrable Securities by an underwriter
or dealer, or (ii) such shorter period as will terminate when all of the
securities covered by such registration statement during such period have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement (but, in any event,
not before the expiration of any longer period required under the Securities
Act), and to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement until
such time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
5
(f) use best efforts to cause all such Registrable Securities
to be listed on each securities exchange on which similar securities issued by
the Company are then listed and, if not so listed, to be listed on a securities
exchange or the National Association of Securities Dealers ("NASD") automated
quotation system and, if listed on the NASD automated quotation system, use its
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a "national market system security" of The Nasdaq
Stock Market within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure The Nasdaq Stock Market's authorization
for such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
(g) use best efforts to provide a transfer agent and registrar
for all such Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split, combination of shares, recapitalization, or
reorganization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant, or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate and business documents and properties of the Company as shall be
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors, employees, agents, representatives, and
independent accountants to supply all such information reasonably requested by
any such seller, underwriter, attorney, accountant, or agent;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, beginning with the
first day of the Company's first full calendar quarter 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 thereunder;
(k) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
6
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(n) use best efforts to obtain a cold comfort letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters, which letter
shall be addressed to the underwriters, and the Company shall use its reasonable
best efforts to cause such cold comfort letter to also be addressed to the
holders of such Registrable Securities; and
(o) use best efforts to obtain an opinion from the Company's
outside counsel in customary form and covering such matters of the type
customarily covered by such opinions, which opinion shall be addressed to the
underwriters and the holders of such Registrable Securities.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if such holder, in
its sole and exclusive judgment, is or might be deemed to be an underwriter or a
controlling person of the Company, such holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such holder and presented to the Company in writing, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby, and that such holding does not imply that such
holder shall assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to such holder by name or otherwise is
not required by the Securities Act or any similar federal or state statute then
in force, the deletion of the reference to such holder; provided that, with
respect to this clause (ii), such holder shall furnish to the Company an opinion
of counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish the Company
with such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, fees and disbursements of counsel for the Company, and all
independent certified public accountants, underwriters (excluding discounts and
commissions), and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), will be borne as provided in this
Agreement, except that the Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance, and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or,
if none are so
7
listed, on a securities exchange or the NASD automated quotation system. The
Company shall have no obligation to pay any underwriting discounts or selling
commissions attributable to the Registrable Securities being sold by the holders
thereof, which underwriting discounts or selling commissions shall be borne by
such holders.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration, and if a majority of the
Registrable Securities include in such registration are not Other Registrable
Securities then one counsel chosen by the holders are a majority of the Other
Registrable Securities included in such registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder will pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable will be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of each seller's
securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the
full extent permitted by law, each holder of Registrable Securities, its
officers, directors, member, agents, and employees and each Person who controls
such holder (within the meaning of the Securities Act) against any and all
losses, claims, damages, liabilities, joint or several, together with reasonable
costs and expenses (including reasonable attorney's fees), to which such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of,
are based upon, are caused by, or result from (i) any untrue or alleged untrue
statement of material fact contained (A) in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto, or (B) in any application or other document or communication (in this
SECTION 6 collectively called an "APPLICATION") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration statement under the "blue sky" or securities laws thereof, or
(ii) any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company will reimburse such holder and each such director, officer, member,
agent and employee for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action, or proceeding; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof), or expense arises out of, is based
upon, is caused by, or results from an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished to the Company by such holder
expressly for use therein or by such
8
holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
holder with a sufficient number of copies of the same. In connection with any
underwritten offering, the Company will indemnify such underwriters, their
officers and directors, and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the full extent permitted by law, will indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective directors, officers, agents, and employees and each other Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, joint or several, together with reasonable
costs and expenses (including reasonable attorney's fees), to which such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of,
are based upon, are caused by, or result from (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or in
any application, or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such holder expressly for use therein; provided, however, that
the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party), and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
9
(d) The indemnifying party shall not, except with the approval
of each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of a release from all
liability in respect to such claim or litigation without any payment or
consideration provided by such indemnified party.
(e) If the indemnification provided for in this SECTION 6 is
unavailable to, or is insufficient to hold harmless, an indemnified party under
the provisions above in respect to any losses, claims, damages, or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other hand from the sale of Registrable Securities pursuant to
the registered offering of securities as to which indemnity is sought, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other hand in
connection with the registration statement on the other in connection with the
statement or omissions which resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) to the Company
bear to the total net proceeds from the offering (before deducting expenses) to
the sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of the Company on the one hand and of
the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged omission to state a material
fact relates to information supplied by the Company or by the sellers of
Registrable Securities or other sellers participating in the registration
statement and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
(f) The Company and the sellers of Registrable Securities
agree that it would not be just and equitable if contribution pursuant to this
SECTION 6 were determined by pro rata allocation (even if the sellers of
Registrable Securities were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this SECTION 6, no seller of Registrable
Securities shall be required to contribute any amount in excess of the net
proceeds received by such seller from the sale of Registrable Securities covered
by the registration statement filed pursuant hereto. No person guilty of
fraudulent misrepresentation (within the meaning of SECTION 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
10
(g) The indemnification and contribution by any such party
provided for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director, or controlling Person of such indemnified party and will
survive the transfer of securities.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any registration hereunder
which is underwritten unless such Person (i) enters into and agrees to sell such
Person's securities on the basis provided in customary underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements (including, without limitation, pursuant to the terms of any
over-allotment or "green shoe" option requested by the managing underwriter(s);
provided that no holder of Registrable Securities will be required to sell more
than the number of Registrable Securities that such holder has requested the
Company to include in any registration), and (ii) completes and executes all
customary questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements.
(b) Each Person that is participating in any registration
hereunder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in SECTION 4(e) above, or upon any
suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program of the Company, of the ability of all "insiders" covered by such program
to transact in the Company's securities because of the existence of material
non-public information, each holder of Registrable Securities included in any
registration shall immediately discontinue disposition of such Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such holder receives the supplemented or amended prospectus
contemplated by SECTION 4(e) or the restriction on the ability of "insiders" to
transact in the Company's securities is removed, as applicable, and, if so
directed by the Company, each such holder will deliver to the Company all
copies, other than permanent file copies then in such holder's possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event that the Company shall give any such
notice, the applicable time period mentioned in SECTION 4(b) during which a
Registration Statement is to remain effective shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to this SECTION 7 to and including the date when each seller of a
Registrable Security covered by such registration statement shall have received
the copies of the supplemented or amended prospectus contemplated by SECTION
4(e).
8. CURRENT PUBLIC INFORMATION. At all times after the Company
has filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company will file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such
11
rule may be amended from time to time) or any similar rule or regulation
hereafter adopted by the Securities and Exchange Commission.
9. DEFINITIONS
"BANK GROUP" shall mean U.S. Bank National Association, ARK
CLO 2000-1 Limited, and St. Xxxxxxx Bank, F.S.B.
"COMMON STOCK" shall mean the Class A Common Stock, $0.01 par
value per share, of the Company as constituted on the date hereof and any stock
into which any such common stock shall have been changed or any stock resulting
from any reclassification of any such common stock.
"NASD" shall have the meaning set forth in SECTION 3(f).
"OTHER REGISTRABLE SECURITIES" means (i) all shares of Common
Stock of the Company originally issued, directly or indirectly, to any Other
Investor, (ii) all shares of Common Stock of the Company issued or issuable,
directly or indirectly, with respect to the securities referred to in clause (i)
above upon exercise, conversion, or exchange or by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, or other reorganization, and (iii) any other shares of
Common Stock of the Company held by Persons holding securities described in
clauses (i) and (ii) above. As to any particular Other Registrable Securities,
such securities shall cease to be Other Registrable Securities when they have
(a) been distributed to the public pursuant to an offering registered under the
Securities Act, (b) been sold to the public through a broker, dealer, or market
maker in compliance with Rule 144 under the Securities Act (or any similar rule
then in force), (c) been repurchased by the Company or any Subsidiary thereof or
purchased or otherwise acquired by Sun, and, if such Other Registrable
Securities are purchased or otherwise acquired by Sun, then such Other
Registrable Securities shall be deemed Sun Registrable Securities, (d) been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act, or (e) ceased to be outstanding. For purposes of this Agreement,
a Person shall be deemed to be a holder of Other Registrable Securities, and the
Other Registrable Securities shall be deemed to be in existence, whenever such
Person has the right to acquire, directly or indirectly, such Other Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right other than vesting), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Other Registrable Securities hereunder.
"PERSON" shall mean an individual, a corporation, a limited
liability company, an association, a joint-stock company, a business trust or
other similar organization, a partnership, a joint venture, a trust, an
unincorporated organization or a government or any agency, instrumentality or
political subdivision thereof.
"REGISTRABLE SECURITIES" means, collectively, the Sun
Registrable Securities and the Other Registrable Securities.
12
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations
promulgated thereunder, all as amended, modified or supplemented from time to
time.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental
body or agency succeeding to the functions thereof.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, or any similar federal law then in force.
"SUBSIDIARY" OR "SUBSIDIARIES" means, with respect to any
Person, any corporation, limited liability company, partnership, association, or
other business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof, or (ii) if a limited liability company, partnership, association, or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association, or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association, or other business
entity.
"SUN REGISTRABLE SECURITIES" means (i) all shares of Common
Stock of the Company originally issued, directly or indirectly, to Sun, (ii) all
shares of Common Stock of the Company issued or issuable, directly or
indirectly, with respect to the securities referred to in clause (i) above upon
exercise, conversion, or exchange or by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization, and (iii) all other shares of Common
Stock of the Company held by Persons holding securities described in clauses (i)
and (ii) above. As to any particular Sun Registrable Securities, such securities
shall cease to be Sun Registrable Securities when they have (a) been distributed
to the public pursuant to an offering registered under the Securities Act, (b)
been sold to the public through a broker, dealer, or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in force), (c)
been repurchased by the Company or any Subsidiary thereof or purchased or
otherwise acquired by any employee of the Company, and, if such Sun Registrable
Securities are purchased or otherwise acquired by any employee of the Company,
then such Sun Registrable Securities shall be deemed Other Registrable
Securities, (d) been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration under the Securities Act, or (e) ceased to be outstanding. For
purposes of this Agreement, a Person shall be deemed to be a holder of Sun
Registrable Securities, and the Sun Registrable Securities shall be deemed to be
in existence, whenever such Person has the right to acquire directly or
indirectly such Sun Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition
13
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Sun Registrable Securities hereunder.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to the Company's securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to the
Company's securities which would materially and adversely affect the ability of
the holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split, combination of shares,
or other recapitalization).
(c) AMENDMENT AND WAIVER. Except as otherwise provided herein,
no modification, amendment, or waiver of any provision of this Agreement will be
effective unless such modification, amendment, or waiver is approved in writing
by the Company, each member of the Bank Group, Sun, and the holders of at least
a majority of the Other Registrable Securities; provided that execution of a
joinder hereto shall not be considered a modification, amendment or waiver of
any of the provisions of this Agreement. The failure of any party to enforce any
of the provisions of this Agreement will in no way be construed as a waiver of
such provisions and will not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
(d) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal, or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision had never been contained herein.
(e) ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement, those documents expressly referred to herein, and the
other documents of even date herewith embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements, or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective heirs, executors, successors and assigns. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the holders of Registrable
Securities (or any portion thereof) as such shall be for the benefit of, and
enforceable by, any subsequent holder of any Registrable Securities (or of such
portion thereof).
14
(g) COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
shall constitute one and the same agreement.
(h) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce their rights under this Agreement
specifically to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor; PROVIDED,
however the parties hereto stipulate that the remedies at law of any party
hereto in the event of any default or threatened default by any other party
hereto in the performance of or compliance with the terms hereof are not and
will not be adequate and that, to the fullest extent permitted by law, such
terms may be specifically enforced (without posting a bond or other security) by
a decree for the specific performance thereof, whether by an injunction against
violation thereof or otherwise.
(i) NOTICES. All communications provided for herein shall be
in writing and sent (a) by facsimile if the sender on the same day sends a
confirming copy of such communication by a recognized overnight delivery service
(charges prepaid), (b) by a recognized overnight delivery service (charges
prepaid), or (c) by messenger. The respective addresses of the parties hereto
for the purposes of this Agreement are set forth on EXHIBIT A attached hereto.
Any party may change its address (or facsimile number) by notice to each of the
other parties in accordance with this SECTION 10(i). The date of giving or
making of any such communication shall be, in the case of clauses (a) and (c),
the date of the receipt; and, in the case of clause (b), the business day next
following the date such communication is sent.
(j) GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Wisconsin without giving effect to any choice or conflict
of law provision or rule (whether of the State of Wisconsin or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Wisconsin. Each party hereto submits to the jurisdiction
of any state or federal court sitting in Milwaukee, Wisconsin, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each party also agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. Each party hereto
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other party with respect thereto. Any party may make service
on any other party by sending or delivering a copy of the process to the party
to be served at the address and in the manner provided for the giving of notices
in SECTION 10(i) above. Nothing in this SECTION 10(j), however, shall affect the
right of any party to bring any action or proceeding arising out of or relating
to this Agreement in any other court or to serve legal process in any other
manner permitted by law or at equity. Each party agrees that a final judgment in
any action or proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law or at equity. EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT
OF ITS, HIS OR HER OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
15
(k) NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
(l) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
holiday in the state in which the Company's chief executive office is located,
the time period shall automatically be extended to the business day immediately
following such Saturday, Sunday or legal holiday.
(m) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Agreement on the day and year first above written.
NORTHLAND CRANBERRIES, INC.
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Chief Executive Officer
SUN NORTHLAND, LLC
By: /s/ M. Xxxxxx Xxxx
-----------------------
Name: M. Xxxxxx Xxxx
Title: Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxx
-----------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
ST. XXXXXXX BANK, F.S.B.
By: /s/ Xxxx X. Tans
------------------------
Name: Xxxx X. Tans
Title: Vice President
[Continuation of Registration Agreement Signature Page]
ARK CLO 2000-1 LIMITED
By: Patriarch Partners, LLC
Its Collateral Manager
By: /S/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION
By: /S/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[Continuation of Registration Agreement Signature Page]
Ableco Holding LLC
By: /s/ Xxxxx X. Genda
------------------------
Name: Xxxxx X. Genda
Title: Attorney-in-Fact
EXHIBIT A
ADDRESSES FOR NOTICES
(a) If to the Company, to it at:
Northland Cranberries, Inc.
000 Xxxxx Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxx Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy No.:(000) 000-0000
WITH A COPY TO:
Sun Capital Advisors II, L. P.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Xxxxxx X. Xxxxxx
C. Xxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
AND A COPY TO:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
EXHIBIT A
(CONTINUED)
(b) If to Sun Northland, LLC, to it at:
c/o Sun Capital Advisors II, L. P.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Xxxxxx X. Xxxxxx
C. Xxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
(c) If to Other Investors, to it at:
Foothill Capital Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Business Finance Division Manager
Telecopy No.:________________
WITH A COPY TO:
Otterbourg, Steindler, Houston & Xxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Brand, Esq.
Telecopy No.: (000) 000-0000
EXHIBIT A
(CONTINUED)
Ableco Holding LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
WITH A COPY TO:
Xxxxxxx Xxxx & Xxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
St. Xxxxxxx Bank, F.S.B.
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx Tans
Telecopy No.: (000) 000-0000
ARK CLO 2000-1 Limited
c/o Patriarch Partners, LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx/Xxxx Xxxxxx
Telecopy No.: (000) 000-0000
ARK CLO 2000-1 Limited
c/o Woodside Capital
00 Xxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxx
Telecopy No.: (000) 000-0000
U.S. Bank National Association
MPFP2516
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
