EXHIBIT 4.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated November 14, 2001 (the
"Agreement") is entered into by and among Land O'Lakes, Inc., a Minnesota
cooperative corporation (the "Company"), the entities listed in Schedule I
hereto (the "Subsidiary Guarantors"), and X.X. Xxxxxx Securities Inc., SPP
Capital Partners, LLC, SunTrust Capital Markets, Inc., Tokyo-Mitsubishi
International plc and U.S. Bancorp Xxxxx Xxxxxxx, (the "Initial Purchasers").
The Company, the Subsidiary Guarantors and the Initial Purchasers are
parties to the Purchase Agreement dated November 8, 2001 (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $350,000,000 aggregate principal amount of the Company's 8 3/4%
Senior Notes due 2011 (the "Securities") which will be fully and unconditionally
guaranteed on an unsecured senior basis by each of the Subsidiary Guarantors. As
an inducement to the Initial Purchasers to enter into the Purchase Agreement,
the Company and the Subsidiary Guarantors have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Subsidiary Guarantors of Exchange Securities for Registrable Securities pursuant
to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in
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each case including the Prospectus contained therein, all exhibits thereto and
any document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company and
guaranteed by the Subsidiary Guarantors under the Indenture containing terms
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Subsidiary Guarantors" shall have the meaning set forth in the
preamble and shall also include any Subsidiary Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of November 14, 2001 among the Company, the Subsidiary Guarantors and U.S.
Bank N.A., as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Company shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
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other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities upon the earlier to occur of
(i) when a Registration Statement with respect to such Securities has been
declared effective under the Securities Act and such Securities have been
exchanged or disposed of pursuant to such Registration Statement, (ii) when such
Securities have been sold pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or (iii) when such
Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Subsidiary Guarantors with
this Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees
and disbursements of counsel for the Company and the Subsidiary Guarantors and,
in the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Company and
the Subsidiary Guarantors, including the expenses of any special audits or
"comfort" letters required by or incident to such performance and compliance,
but excluding fees and expenses of counsel to the underwriters (other than fees
and expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Subsidiary Guarantors that covers any of the Exchange Securities
or Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantors that covers all the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Trust Indenture Act" shall have the meaning set forth in Section 3(I)
hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretations of the Staff of the SEC, the Company and the Subsidiary
Guarantors shall use their reasonable best efforts to (i) cause to be filed an
Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for Exchange Securities and (ii) have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company and the Subsidiary Guarantors shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and use their reasonable best efforts to complete the
Exchange Offer within 225 days after issuance. The Company and the Subsidiary
Guarantors shall commence the Exchange Offer by mailing the related exchange
offer Prospectus and accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered will be accepted for
exchange;
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(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the enclosed letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) and in the manner specified in the notice, prior
to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange
and a statement that such Holder is withdrawing its election to have
such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company and
the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company and the Subsidiary Guarantors shall use their reasonable
best efforts to complete the Exchange Offer as provided above and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC. The Company shall inform the Initial Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
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(b) In the event that (i) the Company and the Subsidiary Guarantors
determine that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be completed as soon as practicable after the
last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason completed by 225 days after the Closing Date or (iii) the Exchange
Offer has been completed and in the reasonable opinion of counsel for the
Initial Purchasers a Registration Statement must be filed and a Prospectus must
be delivered by the Initial Purchasers in connection with any offering or sale
of Registrable Securities, the Company and the Subsidiary Guarantors shall use
their reasonable best efforts to cause to be filed as soon as practicable after
such determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
sale of all the Registrable Securities by the Holders thereof and to have such
Shelf Registration Statement declared effective by the SEC.
In the event that the Company and the Subsidiary Guarantors are
required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence, the Company and
the Subsidiary Guarantors shall use their reasonable best efforts to file and
have declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchasers after completion of the
Exchange Offer. The Company and the Subsidiary Guarantors agree to use their
reasonable best efforts to keep the Shelf Registration Statement continuously
effective until the earlier of the expiration of the holding period referred to
in Rule 144(k) under the Securities Act with respect to the Registrable
Securities and such shorter period that will terminate when all the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement. Subject to the other provisions herein set
forth, the Company and the Subsidiary Guarantors further agree to supplement or
amend the Shelf Registration Statement and the related Prospectus if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable. The
Company and the Subsidiary Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts
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and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided that if, after it has been declared effective, the offering of
Registrable Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any court or other governmental or regulatory agency or body, such Registration
Statement will not be deemed effective during the period of such interference
until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume.
As provided in the Indenture, in the event that either the Exchange
Offer is not completed or the Shelf Registration Statement, if required hereby,
is not declared effective on or prior to the 225th day following the Closing
Date, then from such date, the interest rate on the Securities will be increased
by 0.25% per annum with an additional 0.25% per annum increase each 90 days
thereafter, up to a maximum increase of 1.00% per annum until the Exchange Offer
is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act.
In the event that the Shelf Registration Statement, if required hereby,
has been declared effective and such Shelf Registration Statement ceases to be
effective at any time during the period during which such Shelf Registration
Statement is required to be effective pursuant to Section 2(b) hereof, the
interest rate on the Securities will be increased by 0.25% per annum with an
additional 0.25% per annum increase each 90 days thereafter, up to a maximum
increase of 1.00% per annum, commencing on the day after such Shelf Registration
Statement ceases to be effective until the Shelf Registration Statement (as
amended or supplemented, if necessary) again becomes effective. For the purposes
of this paragraph, each period during which such Shelf Registration Statement is
required to be effective and is not effective shall be added to all such prior
periods in the previous consecutive twelve months in order to determine the
interest rate on the Securities.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Subsidiary Guarantors acknowledge that any
failure by the Company or the Subsidiary Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Subsidiary Guarantors' obligations
under Section 2(a)
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and Section 2(b) hereof (it being understood that any damages recovered shall
not include damages beyond those described in this Section (e) and Section
2(d)).
3. Registration Procedures.
In connection with their obligations pursuant to Section 2(a) and
Section 2(b) hereof, the Company and the Subsidiary Guarantors shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Subsidiary Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their reasonable
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
keep each Prospectus current during the period described in Section 4(3) of and
Rule 174 under the Securities Act that is applicable to transactions by brokers
or dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in order
to facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Subsidiary Guarantors consent to the use of
such Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities and any
such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
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with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither the Company nor any
Subsidiary Guarantor shall be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) take any action that would
subject it to service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Subsidiary Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of such
Registrable Securities cease to be true and correct in all material respects or
if the Company or any Subsidiary Guarantor receives any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(v) of the happening of any event during the period a Shelf Registration
Statement is effective that makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or that
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading and (vi) of any
determination by the Company or any Subsidiary Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide reasonably prompt notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
document incorporated therein by reference or exhibits thereto, unless requested
in writing by any such holder);
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(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be in
such denominations and registered in such names (consistent with the provisions
of the Indenture) as the selling Holders may reasonably request at least one
business day prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their reasonable best efforts,
subject to Section 3(o) herein, to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and the Company and the Subsidiary Guarantors shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders hereby agree
to suspend use of the Prospectus until the Company and the Subsidiary Guarantors
have amended or supplemented the Prospectus to correct such misstatement or
omission or until the Company and the Subsidiary Guarantors notify the Holders
that the Prospectus may once again be used;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities and their
counsel) and, in the event that an Initial Purchaser is participating in the
Exchange Offer, the Company shall use its reasonable best efforts to reflect in
each such document, when so filed, such comments as such participating Initial
Purchaser reasonably may propose (and in the case of a Shelf Registration
Statement, as the participating Holders of Registrable Securities reasonably may
propose) and make such of the representatives of the Company and the Subsidiary
Guarantors as shall be reasonably requested by the participating Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the participating Holders of Registrable Securities or their counsel) available
for discussion of such document; and the Company and the Subsidiary Guarantors
shall not at any time file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a Registration Statement or
a Prospectus or any document that is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the participating Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the participating Holders of Registrable Securities and their
counsel)
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shall not have previously been advised and furnished a copy or to which the
participating Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the participating Holders or their counsel) shall
object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(I) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), in connection with the
registration of the Exchange Securities or Registrable Securities, as the case
may be; cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and execute, and use their reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Company and the Subsidiary Guarantors,
and cause the respective officers, directors and employees of the Company and
the Subsidiary Guarantors to supply all information reasonably requested by any
such representative, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement;
(n) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement or required by law, promptly incorporate in
a Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included therein
and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification of the
matters to be incorporated in such filing; and
(o) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and
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confirm the same if and when requested, (ii) obtain opinions of counsel to the
Company and the Subsidiary Guarantors (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered
in opinions requested in underwritten offerings, (iii) obtain "comfort" letters
from the independent certified public accountants of the Company and the
Subsidiary Guarantors (and, if necessary, any other certified public accountant
of any subsidiary of the Company or any Subsidiary Guarantor, or of any business
acquired by the Company or any Subsidiary Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Subsidiary Guarantors made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company and the Subsidiary Guarantors may from
time to time reasonably request in writing, and the Company may exclude from
such registration the Registrable Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Subsidiary Guarantors of the happening of any event of the kind
described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or of notice from the Company and the
Subsidiary Guarantors that the Prospectus may once again be used and, if so
directed by the Company and the Subsidiary Guarantors, such Holder will deliver
to the Company and the Subsidiary Guarantors all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice.
If the Company and the Subsidiary Guarantors shall give any such notice
to suspend the disposition of Registrable Securities pursuant to a Registration
Statement, the Company and the Subsidiary Guarantors shall extend the period
during which the Registration Statement shall be maintained effective pursuant
13
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions. Notwithstanding the foregoing, the Company and the
Subsidiary Guarantors shall not be required to amend or supplement a Shelf
Registration Statement, any related Prospectus or any document incorporated
therein by reference, in the event that, and for a period not to exceed an
aggregate of 60 days in any calendar year if, (i) an event occurs and is
continuing as a result of which a Shelf Registration would, in the Company's
good faith judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and
(ii)(a) the Company determines in its good faith judgment that the disclosure of
such event as such time would have a material adverse effect on the business
operations of the Company or (b) the disclosure otherwise relates to a pending
material business transaction that has not yet been publicly disclosed.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Subsidiary Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company and the Subsidiary Guarantors agree that the
14
provisions of this Agreement as they relate to a Shelf Registration shall also
apply to an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be reasonably requested by the Initial Purchasers
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company and the Subsidiary Guarantors shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by Section
3(i), for a period exceeding 180 days after the last Exchange Date (as
such period may be extended pursuant to the penultimate paragraph of
Section 3 of this Agreement) and Participating Broker-Dealers shall not
be authorized by the Company and the Subsidiary Guarantors to deliver
and shall not deliver such Prospectus after such period in connection
with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the
Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company by the Initial
Purchasers or with the reasonable request in writing to the Company by
one or more broker-dealers who certify to the Initial Purchasers and
the Company in writing that they anticipate that they will be
Participating Broker-Dealers; and provided, further, that in connection
with such application of the Shelf Registration procedures set forth in
Section 3 to an Exchange Offer Registration, the Company and the
Subsidiary Guarantors shall be obligated (x) to deal only with one
entity representing the Participating Broker-Dealers, which shall be
X.X. Xxxxxx Securities Inc. unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel
to the Initial Purchasers unless such counsel elects not to so act and
(z) to cause to be delivered only one, if any, "comfort" letter with
respect to the Prospectus in the form existing on the last Exchange
Date and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Company, any
Subsidiary Guarantor or any Holder with respect to any request that it may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and each Subsidiary Guarantor, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser and each Holder,
their respective affiliates and each Person, if any, who controls any Initial
15
Purchaser or any Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or any
Prospectus, or caused by any omission or alleged omission to state therein 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, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or any Holder furnished to the
Company in writing through X.X. Xxxxxx Securities Inc. or any selling Holder
expressly for use therein; provided, however, that with respect to any such
untrue statement or alleged untrue statement in or omission from or alleged
omission from any preliminary prospectus, the indemnity agreement contained in
this Section 5(a) shall not inure to the benefit of any Holder from whom the
Person asserting any such loss, claim, damage, liability or action received
Securities or Exchange Securities to the extent such loss, claim, damage,
liability or action results from the fact that both (A) a copy of the final
prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities or Exchange Securities to such
person and (B) the untrue statement or alleged untrue statement in or omission
from or alleged omission from the preliminary prospectus was corrected in the
final prospectus unless, in either case, such failure to deliver the final
prospectus was a result of non- compliance by the Company with Section 3(c) or
(g). In connection with any Underwritten Offering permitted by Section 3, the
Company and the Subsidiary Guarantors will also indemnify the Holders, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Subsidiary Guarantors, the Initial Purchasers and
the other selling Holders, their respective affiliates, the directors of the
Company and the Subsidiary Guarantors, each officer of the Company and the
Subsidiary Guarantors who signed the Registration Statement and each Person, if
any, who controls the Company, the Subsidiary Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
16
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify in writing the Person against whom such indemnification may be
sought (the "Indemnifying Person"); provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates
and any control Persons of such Initial Purchaser shall be designated in writing
by X.X. Xxxxxx Securities Inc., (y) for any Holder, its affiliates and any
control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
17
after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and (ii) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 and the Subsidiary Guarantors from the offering
of the Securities, on the one hand, and by the Holders from receiving Securities
or Exchange Securities registered under the Securities Act, on the other hand,
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Subsidiary Guarantors on the one hand and the Holders on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Subsidiary Guarantors
on the one hand and the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Subsidiary Guarantors or
by the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company, the Subsidiary Guarantors and the Holders agree that
it would not be just and equitable if contribution pursuant to this Section 5
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or
18
Exchange Securities sold by such Holder exceeds the amount of any damages that
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, the Subsidiary
Guarantors or the officers or directors of or any Person controlling the Company
or the Subsidiary Guarantors, (iii) acceptance of any of the Exchange Securities
and (iv) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Subsidiary
Guarantors represent, warrant and agree that (i) the rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Subsidiary Guarantor under any other agreement
and (ii) neither the Company nor any Subsidiary Guarantor has entered into, or
on or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Subsidiary Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(c),
19
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; and (ii) if to the Company and the
Subsidiary Guarantors, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c). All such notices
and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Initial Purchasers
(in their capacity as Initial Purchasers) shall have no liability or obligation
to the Company or the Subsidiary Guarantors with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. Until the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration Statement, as
the case may be, the Company and the Subsidiary Guarantors will not, and will
not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to, resell any of the Securities that have been acquired by any of them,
except for Securities purchased by the Company or any of its affiliates and
resold in a transaction registered under the Securities Act.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Subsidiary Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
20
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York without regard to conflicts of law principles.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
Aheld invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Schedule 1
LAND O'LAKES, INC. LAND O'LAKES HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Vice President & Title: Vice President/
Chief Financial Officer Treasurer
ADVANCED BUSINESS CONCEPTS LOL HOLDINGS II, INC.
INTERNATIONAL, LLC
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: President Title: Treasurer
FARBEST, INC. LAND O'LAKES INTERNATIONAL
DEVELOPMENT CORPORATION
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Secretary/Treasurer Title: President
FMR, INC. L.L. OLDS SEED COMPANY
By: /s/ Xxxx Mill By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxx
Title: Secretary Title: Secretary
FORAGE GENETICS, INC. LOL POWER, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Secretary
GOLDEN VALLEY DAIRY PRODUCTS MAPLELEAF, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxx
Title: Secretary Title: Secretary/Treasurer
22
Schedule 1
MICHIGAN STATE SEED COMPANY QC INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxx
Title: Secretary Title: Secretary
NORTH COAST FERTILIZER II, INC. REALTY LOL, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Vice President/
Secretary
NORTHWEST FOOD PRODUCTS COMPANY, INC. RESEARCH SEEDS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Vice President/Secretary Title: Secretary
NORTHWEST FOOD PRODUCTS SEED RESEARCH, INC.
TRANSPORTATION, LLC
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxx Xxxxxx
Title: Treasurer Title: Secretary
QC HOLDINGS INC. SEEDBIOTICS, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxxxx
Title: Secretary Title: Chief Manager
QC, INC. ACS STORES, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxx XxXxxxxxxx
Title: Secretary Title: Member Representative
23
Schedule 1
ALLIANCE MILD PRODUCTS, LLC GOLDEN STATE FEEDS, LLC
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Vice President Finance Title: Assistant Secretary
Secretary/Treasurer
AMERICA'S COUNTSTORES, LLC LAND O'LAKES FARMLAND FEED LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxx XxXxxxxxxx
Title: Assistant Secretary Title: President
AMERICA'S COUNTRY STORES MILK PRODUCTS, LLC
HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxx -----------------------------
------------------------------ Name: Xxxxxx Xxxxxx
Name: Xxxx Xxxxxx Title: Treasurer
Title: Assistant Secretary
COASTAL AG-DEVELOPMENT, INC. NUTRA-BLEND, LLC
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxxx
Title: Secretary/Treasurer Title: Assistant Secretary
DAIRY MANAGEMENT SERVICES, L.L.P. PMI AGRICULTURE, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Manager Title: Member
PM NUTIRITION COMPANY, LLC PURINA XXXXX, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
24
Schedule 1
PMI NUTRITION INTERNATIONAL, LLC XXXXXX PRODUCTS, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
Confirmed and accepted as
of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By: /s/ Xxxxxx Xxxx
-----------------------------
Authorized Signatory
