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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
(SUIZA COMMON STOCK)
January 1, 2000
Dairy Farmers of America, Inc.
Mid-Am Capital, L.L.C.
Northpointe Tower
Suite 1000
00000 X. Xxxxxxxxx Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
Suiza Foods Corporation, a Delaware corporation (the "Company"), Dairy
Farmers of America, Inc., a Kansas cooperative marketing association ("DFA") and
Mid-Am Capital, L.L.C., a Delaware limited liability company ("Mid-Am"), (DFA
and Mid-Am, collectively, the "Holders"), among others, have formed Suiza Fluid
Dairy Group, L.P., a Delaware limited partnership (the "Venture"), through a
series of contributions, mergers and a redemption upon the terms set forth in an
Amended and Restated Contribution Agreement, Plan of Merger and Purchase
Agreement dated as of November 12, 1999 (the "Merger Agreement"). Pursuant to
the terms of that certain Amended and Restated Limited Partnership Agreement of
the Venture dated as of the date hereof (the "Partnership Agreement"), the
interests in the Venture held by the Holders are exchangeable, under certain
circumstances, for shares of common stock, $.01 par value per share, of the
Company ("Common Stock"). In accordance with the terms of the Partnership
Agreement, the Company agrees to register the resale of the Common Stock
issuable upon exchange of the interests in the Venture (the "Interests") held by
the Holders (such Common Stock, the "Registrable Securities") pursuant to the
terms and subject to the conditions set forth herein.
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Merger
Agreement. All references to Sections herein are to Sections of this Agreement
unless otherwise indicated. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by ownership, contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
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"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a Shelf Registration Statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers the Registrable Securities, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
2. Shelf Registration.
(a) (i) The Company shall use its commercially reasonable
efforts to file, within sixty (60) calendar days following
the receipt by the Company of a written request therefore
(a "Demand Notice") by the Holders holding more than fifty
percent (50%) of the Registrable Securities (the "Demand
Date"), with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable
Securities by the Holders in accordance with the methods
of distribution elected by the Holders and set forth in
such Shelf Registration Statement and, thereafter, shall
use commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective under the
Securities Act within one hundred twenty (120) calendar
days following the Demand Date; provided, however, that no
Holder shall be entitled to sell or otherwise transfer any
Registrable Securities held by it unless such Holder is in
compliance with Section 3(g) hereof.
(ii) Each Demand Notice shall specify the amount of
Registrable Securities proposed to be sold. Within fifteen
(15) calendar days after receipt of a Demand Notice, the
Company will give written notice thereof to the other
Holders, if any, and include in such registration all
Registrable Securities with respect to which the Company
has received written requests for inclusion therein within
ten (10) calendar days after the receipt by the applicable
Holder of the
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Company's notice. Each such request shall also specify the
method of disposition thereof.
(iii) The Holders as a group shall be entitled to
make only one (1) demand on the Company pursuant to this
Agreement (and only after the exchange of the Interests), and
under no circumstances shall the Company be required to file
more than one (1) Shelf Registration Statement pursuant to
this Agreement.
(b) The Company shall use its commercially reasonable
efforts to keep the Shelf Registration Statement continuously effective
in order to permit the Prospectus forming part thereof to be usable by
Holders for a period (the "Effectiveness Period") from the date the
Shelf Registration Statement is declared effective until the Company's
obligation pursuant to this Section 2(b) is terminated upon the
earliest of the following: (A) when all outstanding Registrable
Securities held by the Holders which are not affiliates of the Company
may be resold without registration under the Securities Act pursuant to
Rule 144(k) under the Securities Act or any successor provision thereto
or any other applicable law, rule or regulation, whether now in effect
or hereinafter promulgated, adopted or issued, or (B) when all
outstanding Registrable Securities have been sold pursuant to the Shelf
Registration Statement; provided, that such Effectiveness Period will
be extended by the aggregate number of days during which any Holders
are prevented from selling Registrable Securities as a result of
Section 4 of this Agreement.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) (1) The Company shall advise the Holders:
(i) when a Shelf Registration Statement, and any
amendment thereto, has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration Statement
or the Prospectus included therein or for additional
information.
(2) The Company shall advise the Holders:
(i) of the issuance by the Commission of any
stop order suspending effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose; and
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included
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therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose.
(b) The Company shall use its commercially reasonable
efforts to prevent the issuance, and, if issued, to obtain the
withdrawal, of any order suspending the effectiveness of any Shelf
Registration Statement at the earliest possible time.
(c) The Company shall furnish to each Holder of
Registrable Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendments thereto,
including financial statements and schedules contained therein,
provided, that the Company shall not be required to furnish to the
Holders reports and other documents incorporated by reference in the
Shelf Registration Statement or any exhibits thereto (including those
incorporated by reference).
(d) The Company shall, during the Effectiveness Period,
deliver to each Holder of Registrable Securities included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request, and the
Company consents (except upon and during the continuance of any event
described in Section 4) to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto during the Effectiveness Period.
(e) Prior to any offering of Registrable Securities
pursuant to any Shelf Registration Statement, the Company shall use its
commercially reasonable efforts to register or qualify or cooperate
with the Holders participating in an offering of the Registrable
Securities and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions in
the United States as any such Holders reasonably request in writing and
do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Registrable Securities
covered by such Shelf Registration Statement; provided, however, that
in no event shall the Company be obligated to (i) qualify generally to
do business or as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to so qualify
but for this Section 3(e), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof then
so subject or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject.
(f) Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations
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and registered in such names as the Holders may request in connection
with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(g) The Company may require each Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution by such Holder of such Registrable Securities required by
law to be disclosed in the Shelf Registration Statement (the "Requisite
Information") or as the Company may otherwise from time to time
reasonably require for inclusion in such Shelf Registration Statement
and the Company may exclude from such registration statement such
information as to any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(h) The Company shall use its commercially reasonable
efforts to list, within fifteen (15) business days of the exchange of
the Interests into Registrable Securities, all of the Registrable
Securities covered by any Shelf Registration Statement on any national
securities exchange or quotation system on which the Common Stock is
then listed or quoted.
The Company shall file, within fifteen (15) business days of
the receipt of notice from any Holder which includes the Requisite
Information with respect to such Holder, with the Commission a
Prospectus supplement pursuant to Rule 424 of the Securities Act, or
any similar rule that may be adopted by the Commission, to amend or
supplement such Shelf Registration Statement to include in the Shelf
Registration Statement the Requisite Information as to such Holder (and
the Registrable Securities held by such Holder), and the Company shall
provide such Holder within fifteen (15) business days of such notice
with a copy of such Prospectus as so amended or supplemented containing
the Requisite Information in order to permit such Holder to comply with
the Prospectus delivery requirements of the Securities Act in a timely
manner with respect to any proposed disposition of such Holder's
Registrable Securities.
No Holder shall be entitled to use the Prospectus unless and
until such Holder shall have furnished the information required by this
Section 3(g).
(i) The Company shall use its commercially reasonable
efforts to take all other steps necessary to effect the registration,
offering and sale of the Registrable Securities covered by the Shelf
Registration Statement contemplated hereby pursuant to such Shelf
Registration Statement.
4. Standstill.
(a) Any Holder participating in an offering of
Registrable Securities will notify the Company two business days prior
to selling any Registrable Securities pursuant to any Shelf
Registration Statement. If, upon receipt of such a notice, the Company
certifies to such Holder in writing that (i) due to a change in
circumstances or a pending transaction, the Shelf Registration
Statement contains an untrue statement of a material fact or omits
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to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (ii) the public
disclosure required to correct such misstatement or omission would be
injurious to the Company, then such Holder will refrain from selling
any Registrable Securities pursuant to the Shelf Registration Statement
for the period of time, not to exceed forty-five (45) days for each
circumstance or transaction, requested by the Company. The Company will
use commercially reasonable efforts to minimize the time period during
which any Holder is required to refrain from selling Registrable
Securities under this paragraph.
(b) If, during the Effectiveness Period, the Company
commences an underwritten offering of Common Stock on its own behalf or
on behalf of selling stockholders, the Holders participating in an
offering of Registrable Securities will refrain from selling
Registrable Securities pursuant to the Shelf Registration Statement for
a period of time beginning ten (10) days before the anticipated
effective date of the Company's offering (as disclosed by the Company
to such Holders in writing) and ending ninety (90) days after such
effective date (or thirty (30) days after the beginning of such period,
if such effective date has not yet occurred).
5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 2 and 3 hereof.
6. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement,
the Company shall indemnify and hold harmless each Holder participating
in an offering of Registrable Securities, each Person, if any, who
controls any such Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each Holder's
respective directors, officers, employees, trustees and agents, as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of
a material fact contained in any Shelf Registration Statement
(or any amendment thereto) covering Registrable Securities,
including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary in
order to make the statements therein not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such
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untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of
counsel chosen by the Holders or such Holder (except to the
extent otherwise expressly provided in Section 6(c) hereof)),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 6(a);
provided, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission (i) made
in reliance upon and in conformity with written information furnished
to the Company by such Holder participating in an offering of
Registrable Securities in writing expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) or (ii) contained in any
preliminary prospectus if such Holder failed to send or deliver a copy
of the Prospectus (or any amendment or supplement thereto) to the
Person asserting such losses, claims, damages or liabilities on or
prior to the delivery of written confirmation of any sale of securities
covered thereby to such Person in any case where such Prospectus (or
any amendment or supplement thereto) would have cured the defect giving
rise to such loss, claim, damage or liability, unless the failure to so
send or deliver such Prospectus (or any amendment or supplement
thereto) was caused by the failure of the Company to provide a copy of
such Prospectus (or any amendment or supplement thereto) in accordance
with the terms of this Agreement. Any amounts advanced by the Company
to an indemnified party pursuant to this Section 6 as a result of such
losses shall be returned to the Company if it shall be finally
determined by such a court in a judgment not subject to appeal or final
review that such indemnified party was not entitled to indemnification
by the Company.
(b) Each Holder participating in an offering of
Registrable Securities agrees, severally and not jointly, to indemnify
and hold harmless the Company and the other selling Holders and each of
their respective directors, officers (including each officer of the
Company who signed the Shelf Registration Statement), employees,
trustees and agents and each Person, if any, who controls the Company,
or any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any
and all loss, liability, claim, damage and expense whatsoever described
in the indemnity contained in Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment
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or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such selling Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to the Shelf Registration
Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, enclosing a copy of all
papers served on such indemnified party, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than under this Section 6 unless
and to the extent it is not prejudiced as a proximate result of such
failure. An indemnifying party may participate at its own expense in
the defense of any such action. If an indemnifying party so elects
within 30 days after receipt of such notice, such indemnifying party,
jointly with any other indemnifying party, may assume the defense of
such action with counsel chosen by it (subject to the approval of the
indemnified parties defendant in such action, which approval shall not
be unreasonably withheld), unless such indemnified party reasonably
determines that there may be legal defenses available to such
indemnified party which are different from or in conflict with those
available to such indemnifying party. If an indemnifying party is not
entitled to assume the defense of such action as a result of the
proviso to the preceding sentence, counsel for such indemnifying party
shall be entitled to conduct the defense of such indemnifying party and
counsel for each indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties, with the
reasonable expenses and fees of one such separate counsel (in addition
to any local counsel) and other expenses of the indemnified party or
parties related to the defense of such action to be paid by the
indemnifying party. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions of this
paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying party
or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for
all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. The indemnifying party
shall not be liable for any loss, liability, claim, damage or expense
by reason of any settlement of any such action or proceeding effected
without the indemnifying party's prior written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim, (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf
of, the indemnified party and (iii) does not include any payment or
consideration by the indemnified party that is not covered by the
indemnification provisions of this Agreement.
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(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity provision
agreement provided for in this Section 6 is for any reason held to be
unavailable to the indemnified parties although applicable in
accordance with its terms, the Company, and the Holders participating
in an offering of Registrable Securities shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred by the
indemnified party, as incurred; provided, that 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
that was not guilty of such fraudulent misrepresentation. As between
the Company and the Holders, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement in such proportion as
shall be appropriate to reflect the relative fault of the Company, on
the one hand, and the Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim,
damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the Company,
on the one hand, and of the Holders, on the other hand, 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, on the one hand, or by or on behalf of the Holders, on the
other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Holders agree that it would not be just
and equitable if contributions pursuant to this Section 6 were to be
determined by pro rata allocation or by any other method of allocation
that does not take into account the relevant equitable considerations.
Notwithstanding the provisions of this Section, no Holder shall be
required to contribute any amount in excess of the net proceeds
received by such Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement. For purposes of this
Section 6(d), each director, officer, employee, trustee, agent and
Person, if any, who controls a Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such Holder, and each director, officer,
employee, trustee and agent of each of the Company, and each Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim
settled without its written consent.
7. Miscellaneous.
(a) No Inconsistent Agreements; Other Registration
Rights. The Company shall not enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The Company is not currently a party to any agreement granting
any registration rights with respect to any of its securities to any
person which conflicts with the Company's obligations hereunder or
gives any other party the right to include any
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securities in any Registration Statement filed pursuant hereto (except
in each case, as have been waived).
(b) Amendments and Waivers. The provision of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Holders representing
more than fifty percent (50%) of the Registrable Securities from time
to time.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
1) if to a Holder, at the address of such
Holder as it appears on the register for the Common Stock; and
2) if to the Company, initially at its address
set forth in the Merger Agreement.
All such notices and communications shall be deemed to have
duly given when received, if delivered in person or by fax;
five days after mailing, if sent by mail, or the day following
transmission, if sent by overnight courier.
The Company by notice to the others may designate additional
or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the permitted successors and assigns
of each of the parties.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. This Agreement shall be governed by
the internal laws of the State of Delaware, without regard to
principles of conflicts of law.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in
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any way impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the
fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement as of the day and year first above written.
Very truly yours,
SUIZA FOODS CORPORATION
By: /s/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
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Title: Executive Vice President,
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Secretary & General Counsel
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DAIRY FARMERS OF AMERICA, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: President &
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Chief Executive Officer
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MID-AM CAPITAL, L.L.C.
By: /s/ XXXXXX X. XXX
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Name: Xxxxxx X. Xxx
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Title: Chief Executive Officer &
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Treasurer
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