EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
March 27, 1998 by and between Gardenburger, Inc., an Oregon corporation and
f/k/a Wholesome and Hearty Foods, Inc. (the "Company"); and Dresdner Kleinwort
▇▇▇▇▇▇ Private Equity Partners LP, a Delaware limited partnership ("Dresdner").
As of the date hereof, Dresdner owns $15,000,000 in principal amount of
Convertible Senior Subordinated Notes issued by the Company.
Except as defined in Section 1 of this Agreement or otherwise indicated
in this Agreement, each capitalized term used in this Agreement has the meaning
set forth in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Affiliate" means, when used with reference to a specified Person, any
Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). With respect to any Person who is an individual, "Affiliates" shall
also include, without limitation, any member of such individual's Family Group.
"Common Stock" means, collectively, the Company's Common Stock, no par
value, and any other common stock authorized by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Family Group" means, with respect to any Person who is an individual,
(i) such Person's spouse, former spouse and descendants (whether natural or
adopted), parents and their descendants and any spouse of the foregoing persons
(collectively, "relatives") or (ii) the trustee, fiduciary or personal
representative of such Person and any trust solely for the benefit of such
Person and/or such Person's relatives.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, a bank, a trust company, a business
trust, a governmental entity or any department, agency or political subdivision
thereof or any other entity or organization.
"Purchase Agreement" means the Note Purchase Agreement dated as of the
date hereof between the Company and Dresdner.
"Registrable Securities" means (i) all Common Stock acquired by, or
issued or issuable to, Dresdner or any of its Affiliates on or after the date
hereof pursuant to (x) any of the terms of the Notes, including the conversion
of any principal amount into Common Stock or in connection with the payment of
interest, (y) any of the terms of the Purchase Agreement, or (z) the exercise of
any ID Warrants and (ii) all equity securities issued or issuable directly or
indirectly with respect to any Common Stock described in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public in
compliance with Rule 144. For purposes of this Agreement, a Person will be
deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing and distributing expenses, messenger and
delivery expenses, fees and expenses of custodians, internal expenses (including
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any similar rule
then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or other business entity, a majority of the partnership or
other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, limited liability company,
association or other business entity gains or losses or shall be or control the
managing director, managing member, manager or a general partner of such
partnership, limited liability company, association or other business entity.
2. Demand Registrations.
(a) Requests for Registration. At any time after the date hereof,
unless at such time a registration statement is effective which meets the
requirements set forth in paragraph 2M of the Purchase Agreement, the holder(s)
of a majority of the Registrable Securities may request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-1
or any similar long-form registration (a "Long-Form Registration"), or on Form
S-2 or S-3 or any similar short-form registration (a "Short-Form Registration")
if such a short form is available. All registrations requested pursuant to this
Section 2(a) are referred to herein as "Demand Registrations". Each request for
a Demand Registration ( a "Demand Request") shall specify the approximate number
of Registrable Securities requested to be registered, the anticipated method or
methods of distribution and the anticipated per share price range for such
offering. Within ten days after receipt of any such Demand Request, the Company
will give written notice of such requested registration (which shall specify the
intended method of disposition of such Registrable Securities) to all other
holders of Registrable Securities (a "Company Notice") and the Company will
include (subject to the provisions of this Agreement) in such registration, all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the delivery of such Company
Notice.
(b) Long-Form Registrations. The holders of Registrable Securities will
be entitled to three Long-Form Registrations. A registration will not count as
one of the permitted Long-Form Registrations for purposes of the preceding
sentence unless and until it has become effective and no Long-Form Registration
will count as a Long-Form Registration for purposes of the preceding sentence
unless the applicable holders of Registrable Securities are able to register and
sell at least 75% of the Registrable Securities requested to be included by them
in such registration. The Company will pay all Registration Expenses in
connection with any registration initiated as a Long-Form Registration whether
or not it has become effective.
(c) Short-Form Registrations. The holders of Registrable Securities
will be entitled to unlimited Short-Form Registrations. Demand Registrations
will be Short-Form Registrations whenever the Company is permitted to use any
applicable short form. During such time as the Company is subject to the
reporting requirements of the Exchange Act, the Company will use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities. The Company will pay all Registration Expenses in
connection with any registration initiated as a Short-Form Registration whether
or not it has become effective.
(d) Priority on Demand Registrations.
(i) The Company will not include in any Demand Registration
any securities which are not Registrable Securities unless holder(s) of
a majority of the Registrable Securities initiating such Demand
Registration pursuant to Section 2(a) otherwise consent.
(ii) If a Demand Registration is an underwritten offering and
the managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted
hereunder, other securities, requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if
any, which can be sold in an orderly manner in such offering within a
price range acceptable to holder(s) of a majority of the Registrable
Securities initiating such Demand Registration pursuant to Section 2(a)
and without adversely affecting the marketability of the offering, then
the Company will include in such Demand Registration (A) first, the
number of Registrable Securities requested to be included in such
Demand Registration, pro rata from among the holders of such
Registrable Securities according to the number of Registrable
Securities requested by them to be so included, and (B) second, any
other securities of the Company requested to be included in such
registration, in such manner as the Company may determine.
(e) Restrictions on Demand Registrations.
(i) The Company will not be obligated to file any registration
statement with respect to any Long-Form Registration within 180 days
after the effective date of a previous Long-Form Registration or a
previous registration in which the holders of Registrable Securities
were given piggyback rights pursuant to Section 3 and in which there
were included not less than 80% of the number of Registrable Securities
requested to be included.
(ii) The Company may postpone for up to 90 days the filing or
the effectiveness of a registration statement for a Demand Registration
if the Company determines that such Demand Registration would
reasonably be expected to have a material adverse effect on any
proposal or plan by the Company or any of its Subsidiaries to engage in
any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer, reorganization or
similar transaction; provided that in such event the holders of
Registrable Securities initiating such Demand Registration pursuant to
Section 2(a) will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not count as one of
the permitted Demand Registrations hereunder and the Company will pay
all Registration Expenses in connection with such requested
registration. The Company may delay a Demand Registration under this
clause (ii) only once during any twelve-month period.
(f) Selection of Underwriters. In the case of a Demand Registration for
an underwritten offering, the holders of a majority of the Registrable
Securities initiating such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering (which investment
banker(s) and manager(s) will be nationally recognized) subject to the Company's
approval, which will not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement,
after the date hereof, the Company will not grant to any Persons the right to
request the Company to register any equity or similar securities of the Company,
or any securities convertible or exchangeable into or exercisable for such
securities, without the prior written consent of the holders of a majority of
the Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its Common Stock under the Securities Act for its own account or for the
account of any holder of Common Stock (other than pursuant to a Demand
Registration, and other than in connection with a dividend reinvestment plan or
pursuant to a registration statement on Form S-8 or S-4 or any similar or
successor form) (a "Piggyback Registration"), the Company will give prompt
written notice to all holders of Registrable Securities of its intention to
effect such a registration and of such holders' rights under this Section 3(a).
Upon the written request of any holder of Registrable Securities, the Company
shall include in such registration (subject to the provisions of this Agreement)
all Registrable Securities requested to be registered pursuant to this Section
3(a), subject to Section 3(b) below, with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice; provided that any such holder may withdraw its request
for inclusion at any time prior to executing the underwriting agreement or, if
none, prior to the applicable registration statement becoming effective.
(b) Priority on Primary Registrations. If a Piggyback Registration is
in part an underwritten primary registration on behalf of the Company and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company and without adversely affecting the
marketability of the offering, then the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata from among the holders of such Registrable Securities
according to the number of Registrable Securities requested by them to be so
included, and (iii) third, any other securities requested to be included in such
registration, in such manner as the Company may determine.
(c) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration and without adversely affecting the marketability of the
offering, then the Company will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata from among such holders and the holders of such
Registrable Securities according to the number of Registrable Securities
requested by them to be so included, and (ii) second, any other securities
requested to be included in such registration, in such manner as the Company may
determine.
(d) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, then all the parties hereto agree that the
Company will not file or cause to be effected any other registration of any of
its equity or similar securities or securities convertible or exchangeable into
or exercisable for its equity or similar securities under the Securities Act
(except on Forms S-4 or S-8 or any successor or similar form or in connection
with a Demand Registration), whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least 180 days has
elapsed from the effective date of such previous registration.
(e) Registration Expenses. The Company will pay all Registration
Expenses in connection with any Piggyback Registration whether or not such
Piggyback Registration has become effective.
4. Holdback Agreements.
(a) Each holder of Registrable Securities hereby agrees not to effect
any sale or distribution of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 90-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration), unless the underwriters
managing such underwritten registration otherwise agree (which agreement shall
be equally applicable to all holders of Registrable Securities).
(b) The Company (i) will not effect any sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Forms S-4 or S-8 or
any successor form or pursuant to a dividend reinvestment plan), unless the
underwriters managing such underwritten registration otherwise agree (which
agreement shall be equally applicable to all holders of Registrable Securities),
and (ii) will cause each holder of at least 2% (on a fully diluted basis) of
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any sale or distribution of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing such underwritten registration otherwise agree.
5. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected pursuant to Section 6(b) below
copies of all such documents proposed to be filed, which documents will be
subject to the prompt review and reasonable comment of such counsel), and upon
filing such documents, the Company shall promptly notify in writing such counsel
of the receipt by the Company of any written comments by the SEC with respect to
such registration statement or prospectus or any amendment or supplement thereto
or any written request by the SEC for the amending or supplementing thereof or
for additional information with respect thereto;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than 180 days and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement and cause the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities to the extent required under such other securities or blue sky laws
of such jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction in any jurisdiction where it is not so subject
or (iii) consent to general service of process (i.e., service of process which
is not limited solely to securities law violations) in any such jurisdiction in
any jurisdiction where it is not so subject);
(e) promptly notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will, as soon as reasonably practicable, file and furnish to
all sellers a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market System
("Nasdaq Market") and, if listed on the Nasdaq Market, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure
Nasdaq Market authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
National Association of Securities Dealers;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a split or a
combination of stock or units); provided that no holder of Registrable
Securities shall have any indemnification or contribution obligations
inconsistent with Section 7 hereof;
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information and participate in due diligence sessions reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 promulgated thereunder;
(k) use reasonable best efforts to prevent the issuance of any stop
order ("Stop Order") suspending the effectiveness of a registration statement,
or of any order suspending or preventing the use of any related prospectus or
suspending the qualification of any securities included in such registration
statement for sale in any jurisdiction, and, in the event of such issuance, the
Company shall immediately notify the holders of Registrable Securities included
in such registration statement of the receipt by the Company of such
notification and shall use its best efforts promptly to obtain the withdrawal of
such order;
(l) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities, and
cooperate and assist with any filings to be made with the NASD;
(m) obtain one or more "cold comfort" letters, dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the Company's independent public accountants
in customary form and covering such matters of the type customarily covered by
"cold comfort" letters as the holders of a majority of the Registrable
Securities being sold reasonably request; and
(n) provide a legal opinion of the Company's outside counsel, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
If any such registration or comparable statement refers to any holder
by name or otherwise as the holder of any securities of the Company and if in
such holder's sole and exclusive judgment, such holder is or might be deemed to
be an underwriter or a controlling person of the Company, such holder shall have
the right to require (i) the insertion therein of language, in form and
substance satisfactory to such holder and presented to the Company in writing,
to the effect that the holding by such holder of such securities is not to be
construed as a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar Federal statute
then in force, the deletion of the reference to such holder; provided, that with
respect to this clause (ii), if requested by the Company, such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all Registration Expenses,
will be borne by the Company.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
initially requesting such registration.
7. Indemnification.
(a) By the Company. The Company agrees to, and will cause each of its
Subsidiaries to agree to, indemnify, to the fullest extent permitted by law,
each holder of Registrable Securities, its officers, directors, members,
employees, agents, stockholders and general and limited partners and each Person
who controls such holder (within the meaning of the Securities Act and Exchange
Act) against any and all losses, claims, damages, liabilities and expenses (or
actions or proceedings, whether commenced or threatened, in respect thereof),
joint or several, arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement, reports
required and other documents filed under the Exchange Act, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, together
with any documents incorporated therein by reference, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by
the Company or any of its Subsidiaries of any federal, state, foreign or common
law rule or regulation and relating to action or inaction in connection with any
such registration, disclosure document or other document and shall reimburse
such holder, officer, director, member, employee, agent, stockholder, partner or
controlling Person for any legal or other expenses, including any amounts paid
in any settlement effected with the consent of the Company, which consent will
not be unreasonably withheld or delayed, incurred by such holder, officer,
director, member, employee, agent, stockholder, partner or controlling Person in
connection with the investigation or defense of such loss, claim, damage,
liability or expense, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers, directors, agents and employees and
each Person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the holders of Registrable Securities.
(b) By the Holders. In connection with any registration statement in
which a holder of Registrable Securities is participating, each such holder will
furnish to the Company in writing such information and affidavits about such
holder as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, will
indemnify the Company, its directors and officers and each Person who controls
the Company (within the meaning of the Securities Act) and the other holders of
Registrable Securities against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder which authorizes its use in the applicable document;
provided, that the obligation to indemnify will be individual, not joint and
several, for each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Claim Procedures. Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice will not impair any Person's right to indemnification hereunder to
the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit the indemnifying party to assume the defense thereof, jointly with
any other indemnifying party similarly notified to the extent it may wish, with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld or delayed) and the indemnifying party shall
not, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof, a release from all liability in respect of such claim or
litigation provided by the claimant or plaintiff to such indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay (i) the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying party with respect
to such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim or (ii) any settlement made
by any indemnified party without such indemnifying party's consent (but such
consent will not be unreasonably withheld).
(d) Survival; Contribution. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, agent or employee
and each other Person who participates as an underwriter in the offering or sale
of such securities and each other Person, if any, who controls such indemnified
party (within the meaning of the Securities Act), and will survive the transfer
of securities. The Company also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party in
the event the Company's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements (including, without limitation, pursuant to the
terms of any over-allotment or "green shoe" option requested by the managing
underwriter(s), provided that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) and (b) completes and
executes all customary questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided, that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification or contribution
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in Section 7.
9. Rule 144 Reporting. With a view to making available to the holders
of Registrable Securities the benefits of certain rules and regulations of the
SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the
meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times;
(b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act; and
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request, a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144,
the Securities Act and the Exchange Act; a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as such
Person may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
10. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered if delivered
personally, sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient, or if sent by certified or registered mail, return
receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications will be sent to the
address indicated below:
To the Company:
Gardenburger, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy, which shall not constitute notice, to:
Miller, Nash, Wiener, Hager & ▇▇▇▇▇▇▇ LLP
3500 U.S. Bancorp Tower
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Dresdner:
Dresdner Kleinwort ▇▇▇▇▇▇ Private
Equity Partners LP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy, which shall not constitute notice, to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents and warrants to
the holders of Registrable Securities that the registration rights granted to
the holders of such securities hereby do not conflict with any other
registration rights granted by the Company. The Company will not enter into any
agreement which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may be
amended or waived only upon the prior written consent of the Company and holders
of at least 75% of the Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. The corporate law of the State of Oregon will govern
all questions concerning the relative rights of the Company and its
securityholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
GARDENBURGER, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
DRESDNER KLEINWORT ▇▇▇▇▇▇ PRIVATE
EQUITY PARTNERS LP
By: Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity
Managers LLC, its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Partner