EXHIBIT 4.2
SWIFT & COMPANY
10 1/8% Senior Notes due 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
September 19, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the Initial Purchasers
c/o Salomon Brothers Inc
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Swift & Company, a corporation organized under the laws of the
State of Delaware (the "Company"), proposes to issue and sell its 10 1/8% Senior
Notes due 2009 (the "Notes") to certain purchasers (the "Initial Purchasers"),
upon the terms set forth in a Purchase Agreement, dated as of September 13,
2002, between the Company, S&C Holdco 3, Inc., the subsidiary guarantors
signatory thereto and the Initial Purchasers (the "Purchase Agreement") relating
to the initial placement of the Notes (the "Initial Placement"). The Notes will
be guaranteed (the "Guarantees" and, together with the Notes, the "Securities")
on an unsecured senior basis by S&C Holdco 3, Inc. and each of the Company's
direct and indirect domestic subsidiaries set forth on the signature page hereto
(the "Guarantors"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
and the Guarantors agree with you for your benefit and the benefit of the
holders from time to time of the Securities (including the Initial Purchasers)
(each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether
by contract or otherwise; and the terms "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of September 19, 2002, between the Company, the Guarantors
and The Bank of New York Trust Company of Florida, N.A., as trustee, as the same
may be amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
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"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean debt securities of the Company and
the Guarantors identical in all material respects to the Securities (except that
the cash interest and interest rate step-up provisions and the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued
under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest and interest
rate step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchasers, as trustee with respect to
the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b)(ii) hereof.
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"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) The Company and the Guarantors shall prepare
and, not later than 90 days following the date of the original
issuance of the Securities (or if such 90th day is not a Business
Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Company and the Guarantors
shall use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under
the Act within 180 days of the date of the original issuance of
the Securities (or if such 180th day is not a Business Day, the
next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that
such Holder is not an Affiliate of the Company, acquires the New
Securities in the ordinary course of such Holder's business, has
no arrangements with any Person to participate in the
distribution of the New Securities and is not prohibited by any
law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such New Securities from and
after their receipt without any limitations or restrictions under
the Act and without material restrictions under the securities
laws of a substantial proportion of the several states of the
United States.
(c) In connection with the Registered Exchange
Offer, the Company and the Guarantors shall:
(i) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 20 Business Days and not more than
30 Business Days after the date notice thereof is
mailed to the Holders (or, in each case, longer if
required by applicable law);
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(iii) use their respective reasonable best
efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act,
supplemented and amended as required under the Act,
to ensure that it is available for sales of New
Securities by Exchanging Dealers during the Exchange
Offer Registration Period;
(iv) utilize the services of a depositary
for the Registered Exchange Offer with an address in
the Borough of Manhattan in New York City, which may
be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered
Securities at any time prior to the close of
business, New York time, on the last Business Day on
which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange
Offer Registration Statement, if requested by the
Commission, provide a supplemental letter to the
Commission (A) stating that the Company and the
Guarantors are conducting the Registered Exchange
Offer in reliance on the position of the Commission
in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub.
avail. June 5, 1991); and (B) including a
representation that the Company and the Guarantors
have not entered into any arrangement or
understanding with any Person to distribute the New
Securities to be received in the Registered Exchange
Offer and that the Company and the Guarantors will
not issue New Securities to any Holder participating
in the Registered Exchange Offer who fails to certify
to the Company that such Holder is acquiring the New
Securities in the ordinary course of business and has
no arrangement or understanding with any Person to
participate in the distribution of the New
Securities; and
(vii) comply in all respects with all
applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities
tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation
in accordance with Section 5(s) all Securities so
accepted for exchange; and
(iii) cause the Trustee or the New
Securities Trustee, as the case may be, promptly to
authenticate and deliver to each Holder of Securities
a principal amount of New Securities equal to the
principal amount of the Securities of such Holder so
accepted for exchange.
(e) Each Holder hereby acknowledges and agrees
that any Broker-Dealer and any such Holder using the Registered
Exchange Offer to participate in a
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distribution of the New Securities, if the resales are of New
Securities obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Company or one of its
Affiliates, (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991) and
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993 and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction
and such transaction must be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K
under the Act. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent in
writing to the Company and the Guarantors that, at the time of
the consummation of the Registered Exchange Offer:
(i) any New Securities received by such
Holder will be acquired in the ordinary course of
business;
(ii) such Holder will have no arrangement or
understanding with any Person to participate in the
distribution of the Securities or the New Securities
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the
Company or any of the Guarantors (or if it is, that
it will comply with the registration and prospectus
delivery requirements of the Act to the extent
applicable).
(f) If any Initial Purchaser determines that it is
not eligible to participate in the Registered Exchange Offer with
respect to the exchange of Securities constituting any portion of
an unsold allotment, at the request of such Initial Purchaser,
the Company and the Guarantors shall issue and deliver to such
Initial Purchaser or the Person purchasing New Securities
registered under a Shelf Registration Statement as contemplated
by Section 3 hereof from such Initial Purchaser, in exchange for
such Securities, a like principal amount of New Securities. The
Company and the Guarantors shall use their respective best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; or (ii) for any other reason the Exchange
Offer Registration Statement is not declared effective by the
Commission under the Act within 180 days of the date of the
original issuance of the Securities or the Registered Exchange
Offer is not consummated within 30 Business Days of the date of
the effectiveness of the Exchange Offer Registration Statement;
(iii) any Initial Purchaser so requests with respect to
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Securities that are not eligible to be exchanged for New
Securities in the Registered Exchange Offer and that are held by
it following consummation of the Registered Exchange Offer; (iv)
any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer or does not receive
freely tradable New Securities in the Registered Exchange Offer,
other than by reason of such Holder being an Affiliate of the
Company (it being understood that the requirement that a
participating Broker-Dealer deliver the prospectus contained in
the Exchange Offer Registration Statement in connection with
sales of New Securities shall not result in such New Securities
being not "freely tradable"); or (v) in the case of any Initial
Purchaser that participates in the Registered Exchange Offer or
acquires New Securities pursuant to Section 2(f) hereof, such
Initial Purchaser does not receive freely tradeable New
Securities in exchange for Securities constituting any portion of
an unsold allotment, other than by reason of such Holder being an
Affiliate of the Company (it being understood that (x) the
requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall not
result in such New Securities being not "freely tradeable"; and
(y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in
the Registered Exchange Offer in exchange for Securities acquired
as a result of market-making activities or other trading
activities shall not result in such New Securities being not
"freely tradeable"), the Company and the Guarantors shall effect
a Shelf Registration Statement in accordance with subsection (b)
below.
(b) (i) The Company and the Guarantors shall as
promptly as practicable (but in no event more than 90 days after
so required or requested pursuant to this Section 3), file with
the Commission and thereafter shall use their respective
reasonable best efforts to cause to be declared effective under
the Act a Shelf Registration Statement relating to the offer and
sale of the Securities or the New Securities, as applicable, by
the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in
such Shelf Registration Statement; provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder;
and provided further, that with respect to New Securities
received by an Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Company and
the Guarantors may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the information
required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with
respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The Company and the Guarantors shall use
their respective reasonable best efforts to keep the
Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in
order to permit the Prospectus forming part thereof
to be usable by Holders for a period of two
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years from the date the Shelf Registration Statement
is declared effective by the Commission or such
shorter period that will terminate when all the
Securities or New Securities, as applicable, covered
by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf
Registration Period"). The Company and the Guarantors
shall be deemed not to have used their respective
reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite
period if they voluntarily take any action that would
result in Holders of Securities covered thereby not
being able to offer and sell such Securities during
that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the
Company and the Guarantors in good faith and for
valid business reasons (not including avoidance of
the Company and the Guarantors' obligations
hereunder), including the acquisition or divestiture
of assets (to the extent permitted by the terms of
the Indenture), so long as the Company and the
Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable.
(iii) The Company and the Guarantors shall
cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf
Registration Statement or such amendment or
supplement, (A) to comply in all material respects
with the applicable requirements of the Act; and (B)
not to contain any untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
4. Special Interest. If (a) on or prior to the 90th day
following the original issue date of the Securities, the Exchange Offer
Registration Statement has not been filed with the Commission or on or prior to
the 90th day after the obligation to file the Shelf Registration Statement has
arisen, the Shelf Registration Statement has not been filed with the Commission,
(b) on or prior to the 180th day following the original issue date of the
Securities, the Exchange Offer Registration Statement has not been declared
effective by the Commission, (c) on or prior to the 30th Business Day following
the date the Exchange Offer Registration Statement is declared effective, the
Registered Exchange Offer has not been consummated, or (d) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) through (d), a ("Registration Default"),
interest ("Special Interest") will accrue on the principal amount of the
Securities and the New Securities (in addition to the stated interest on the
Securities and New Securities) from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Special Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following the occurrence of
such Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum.
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All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five
Business Days prior to the filing thereof with the
Commission, a copy of any Exchange Offer Registration
Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or
supplement, if any, to the Prospectus included
therein (including, upon request, all documents
incorporated by reference therein after the initial
filing) and shall use their respective reasonable
best efforts to reflect in each such document, when
so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in
Annex A hereto on the facing page of the Exchange
Offer Registration Statement, in Annex B hereto in
the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser,
include the information required by Item 507 or 508
of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration
Statement; and
(iv) in the case of a Shelf Registration
Statement, include the names of the Holders that
propose to sell Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any
amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto
complies in all material respects with the Act and
the rules and regulations thereunder; and
(ii) any Registration Statement and any
amendment thereto does not, when it becomes
effective, contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading.
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(c) The Company and the Guarantors shall advise
you, the Holders of Securities covered by any Shelf Registration
Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the
Company and the Guarantors a telephone or facsimile number and
address for notices, and, if requested by you or any such Holder
or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the
Prospectus until the Company and the Guarantors shall have
remedied the basis for such suspension):
(i) when the Registration Statement and any
amendment thereto has been filed with the Commission
and when the Registration Statement or any
post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for
any amendment or supplement to the Registration
Statement or the Prospectus or for additional
information;
(iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company and the
Guarantors of any notification with respect to the
suspension of the qualification of the securities
included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event that
requires any change in the Registration Statement or
the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit
to state a material fact required to be stated
therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the
circumstances under which they were made) not
misleading.
(d) The Company and the Guarantors shall use their
respective reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale
in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors shall furnish
to each Holder of Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if
the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Company and the Guarantors shall, during
the Shelf Registration Period, deliver to each Holder of
Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration
Statement and any
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amendment or supplement thereto as such Holder may reasonably
request. The Company and the Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of securities in connection with the offering and
sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company and the Guarantors shall furnish
to each Exchanging Dealer which so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer
so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(h) The Company and the Guarantors shall promptly
deliver to each Initial Purchaser, each Exchanging Dealer and
each other Person required to deliver a Prospectus during the
Exchange Offer Registration Period, without charge, as many
copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as
any such Person may reasonably request. The Company and the
Guarantors consent to the use of the Prospectus or any amendment
or supplement thereto by any Initial Purchaser, any Exchanging
Dealer and any such other Person that may be required to deliver
a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the New Securities
covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any
other offering of Securities or New Securities pursuant to any
Registration Statement, the Company and the Guarantors shall
arrange, if necessary, for the qualification of the Securities or
the New Securities for sale under the laws of such jurisdictions
as any Holder shall reasonably request and will maintain such
qualification in effect so long as required; provided that in no
event shall the Company or the Guarantors be obligated to qualify
to do business in any jurisdiction or as a dealer in securities
where they are not then so qualified or to take any action that
would subject them to service of process in suits or taxation,
other than suits arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where they are
not then so subject.
(j) The Company and the Guarantors shall cooperate
with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New
Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may
request.
(k) Upon the occurrence of any event contemplated
by subsections (c)(ii) through (v) above during the period of
time in which the Company is required to maintain an effective
Registration Statement, the Company and the Guarantors shall
promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the
related Prospectus or file
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any other required document so that, as thereafter delivered to
initial purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. In such circumstances, the period
of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 and the Shelf Registration Statement
provided for in Section 3(b) shall each be extended by the number
of days from and including the date of the giving of a notice of
suspension pursuant to Section 5(c) to and including the date
when the Initial Purchasers, the Holders of the Securities and
any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any
Registration Statement, the Company and the Guarantors shall
provide a CUSIP number for the Securities or the New Securities,
as the case may be, registered under such Registration Statement
and provide the Trustee or the New Securities Trustee, as the
case may be, with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository
Trust Company.
(m) The Company and the Guarantors shall comply
with all applicable rules and regulations of the Commission and
shall make generally available to their security holders as soon
as reasonably practicable after the effective date of the
applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Company and the Guarantors shall cause the
Indenture or the New Securities Indenture, as the case may be, to
be qualified under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require
each Holder of Securities or New Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company and
the Guarantors such information regarding the Holder and the
distribution of such Securities or New Securities as the Company
and the Guarantors may from time to time reasonably require for
inclusion in such Registration Statement. The Company and the
Guarantors may exclude from such Shelf Registration Statement the
Securities or New Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after
receiving such request.
(p) In the case of any Shelf Registration
Statement, the Company and the Guarantors shall enter into such
agreements and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order
to expedite or facilitate the registration or the disposition of
the Securities or New Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 (or such other
provisions and procedures acceptable to the Majority Holders and
the Managing Underwriters, if any) with respect to all parties to
be indemnified pursuant to Section 7.
12
(q) In the case of any Shelf Registration
Statement, the Company and the Guarantors shall:
(i) make reasonably available for inspection
by the Holders of Securities or New Securities to be
registered thereunder, any underwriter participating
in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter
all relevant financial and other records, pertinent
corporate documents and properties of the Company and
its subsidiaries; provided, however, that the
foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by
you and on behalf of the other parties referred to
herein by the counsel designated by and on behalf of
such other parties as described in Section 6 hereof;
(ii) cause the Company's officers, directors
and employees to supply all relevant information
reasonably requested by the Holders or any
underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is
customary for similar due diligence examinations;
provided, however, that any information that is
designated in writing by the Company, in good faith,
as confidential at the time of delivery of such
information shall be kept confidential by the Holders
or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and
warranties to the Holders of Securities or New
Securities registered thereunder and the
underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters
including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the
Company and the Guarantors and updates thereof (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions
requested in underwritten offerings and such other
matters as may be reasonably requested by such
Holders and underwriters, if any;
(v) obtain "cold comfort" letters and
updates thereof from the independent certified public
accountants of the Company (and, if necessary, any
other independent certified public accountants of any
subsidiary of the Company or of any business acquired
by the Company for which financial statements and
financial data are, or are required to be, included
in the Registration Statement), addressed to each
selling Holder of Securities or New Securities
registered thereunder and the underwriters, if any,
in customary form and covering matters
13
of the type customarily covered in "cold comfort"
letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates
as may be reasonably requested by the Majority
Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section
5(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered
into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration
Statement, the Company and the Guarantors shall:
(i) make reasonably available for inspection
by such Initial Purchaser, and any attorney,
accountant or other agent retained by such Initial
Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the
Company and its subsidiaries; provided, however, that
the foregoing inspection and information gathering
shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties
referred to herein by the counsel designated by on
and behalf of such other parties as described in
Section 6 hereof;
(ii) cause the Company's officers, directors
and employees to supply all relevant information
reasonably requested by such Initial Purchaser or any
such attorney, accountant or agent in connection with
any such Registration Statement as is customary for
similar due diligence examinations; provided,
however, that any information that is designated in
writing by the Company, in good faith, as
confidential at the time of delivery of such
information shall be kept confidential by such
Initial Purchaser or any such attorney, accountant or
agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and
warranties to such Initial Purchaser, in form,
substance and scope as are customarily made by
issuers to underwriters in primary underwritten
offerings and covering matters including, but not
limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the
Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to such Initial Purchaser and
its counsel, addressed to such Initial Purchaser,
covering such matters as are customarily covered in
opinions
14
requested in underwritten offerings and such other
matters as may be reasonably requested by such
Initial Purchaser or its counsel;
(v) obtain "cold comfort" letters and
updates thereof from the independent certified public
accountants of the Company (and, if necessary, any
other independent certified public accountants of any
subsidiary of the Company or of any business acquired
by the Company for which financial statements and
financial data are, or are required to be, included
in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering
matters of the type customarily covered in "cold
comfort" letters in connection with primary
underwritten offerings, or if requested by such
Initial Purchaser or its counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter
under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser
or its counsel; and
(vi) deliver such documents and certificates
as may be reasonably requested by such Initial
Purchaser or its counsel, including those to evidence
compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be
consummated, upon delivery of the Securities by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the New Securities, the Company shall ▇▇▇▇, or
caused to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the New Securities.
In no event shall the Securities be marked as paid or otherwise
satisfied.
(t) The Company and the Guarantors will use their
respective reasonable best efforts (i) if the Securities have
been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration
Statement; or (ii) if the Securities were not previously rated,
to cause the Securities covered by a Registration Statement to be
rated with at least one nationally recognized statistical rating
agency, if so requested by Majority Holders with respect to the
related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall
underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice
and the By-Laws of the National Association of Securities
Dealers, Inc.) thereof, whether as a Holder of such Securities or
as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company and the
Guarantors shall assist such Broker-Dealer in
15
complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall
so require, engaging a "qualified independent
underwriter" (as defined in such Rules) to
participate in the preparation of the Registration
Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion
of the offering contemplated by such Registration
Statement is an underwritten offering or is made
through a placement or sales agent, to recommend
the yield of such Securities;
(ii) indemnifying any such
qualified independent underwriter to the extent of
the indemnification of underwriters provided in
Section 7 hereof; and
(iii) providing such information to
such Broker-Dealer as may be required in order for
such Broker-Dealer to comply with the requirements
of such Rules.
(v) The Company and the Guarantors shall use their
respective reasonable best efforts to take all other steps
necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration
Statement.
6. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its and the Guarantors
obligations under Sections 2, 3 and 5 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of one firm or counsel acting in
connection therewith.
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in
Section 5(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each
Person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or
the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission
16
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company
and the Guarantors will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company and the Guarantors by or on behalf of
any such Holder specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which
the Company and the Guarantors may otherwise have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to
Losses of any underwriter of any Securities or New Securities, as
the case may be, registered under a Shelf Registration Statement,
their directors, officers, employees or agents and each Person
who controls such underwriter (within the meaning of the Act or
the Exchange Act) on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders
provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 5(p) hereof.
With respect to any untrue statement or omission of material
fact made in any preliminary Prospectus, the indemnity agreement
contained in this Section 7(a) shall not inure to the benefit of
any indemnified person from whom the person asserting any such
loss, claim, damage or liability purchased the securities
concerned, to the extent that any such loss, claim, damage or
liability of such indemnified person occurs under the
circumstance where it shall have been determined by a court of
competent jurisdiction by final and non-appealable judgment that
(w) the Company had previously furnished copies of the Final
Prospectus to such indemnified person, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y)
the untrue statement or omission of a material fact contained in
the preliminary Prospectus was corrected in the Final Prospectus
and (z) there was not sent or given to such person, at or prior
to the written confirmation of the sale of such securities to
such person, a copy of the Final Prospectus.
(b) Each Holder of securities covered by a
Registration Statement (including each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in
Section 5(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless the Company and the Guarantors, each
of their directors, each of their officers who sign such
Registration Statement and each Person who controls the Company
or any of the Guarantors within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Guarantors to each such Holder, but only
with reference to written information relating to such Holder
furnished to the Company or the Guarantors by or on behalf of
such Holder specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any such Holder may otherwise
have.
17
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section, notify
the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party shall have a
joint and several obligation to contribute to the amount paid or
payable by such indemnified party as a result of the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Registration Statement
which resulted in such Losses; provided, however, that in no case
shall any Initial Purchaser of any Security or New Security be
responsible, in the
18
aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into
such New Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under
the Registration Statement which resulted in such Losses, nor
shall any Holder (other than the Initial Purchasers) be
responsible for any amount by which the net proceeds received
from the sale of such Security by such Holder exceeds the amount
of damages for which such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions
which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and
the Guarantors shall be deemed to be equal to the sum of the
total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum.
Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set
forth on the cover page of the Final Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the
proceeds received from the sale of the Securities or New
Securities, as applicable. Benefits received by any underwriter
shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to,
among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other
hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not
be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for
such purpose) or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such
Holder, and each Person who controls the Company or any of the
Guarantors within the meaning of either the Act or the Exchange
Act, each officer of the Company or any of the Guarantors who
shall have signed the Registration Statement and each director of
the Company or any of the Guarantors shall have the same rights
to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in
full force and effect, regardless of any investigation made by or
on behalf of any Holder or the Company and
19
the Guarantors or any of the officers, directors or controlling
Persons referred to in this Section hereof, and will survive the
sale by a Holder of securities covered by a Registration
Statement.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders and shall be reasonably
acceptable to the Company.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless
such Person (i) agrees to sell such Person's Securities or New
Securities, as the case may be, on the basis reasonably provided
in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Securities or New Securities, as the case may be,
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by the Holders
representing a majority of the aggregate principal amount of the Securities or
the New Securities, as the case may be, being sold rather than registered under
such Registration Statement, voting together as a single class.
11. Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address
given by such holder to the Company in accordance with the
provisions of this Section, which address initially is, with
respect to each Holder, the address of such Holder maintained by
the Registrar under the Indenture, with a copy in like manner to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.;
20
(b) if to you, initially at the respective
addresses set forth in the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially
at its respective address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, the Company or the Guarantors by
notice to the other parties may designate additional or different addresses for
subsequent notices or communications.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. Counterparts. This agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
14. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
21
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
SWIFT & COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S&C HOLDCO 3, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SWIFT BEEF COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
SWIFT PORK COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SWIFT BRANDS COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇▇ BROS. CO., INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ FOOD DISTRIBUTION COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ INTERNATIONAL SALES
CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business 180
days after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business 180 days after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use
in connection with any such resale. In addition, until __________, 200__, all
dealers effecting transactions in the New Securities may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sale of
New Securities by broker-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the
Company and the Guarantors will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
