EXHIBIT 10.7
GORGES/QUIK-TO-FIX FOODS, INC.
$100,000,000
11 1/2% SENIOR SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
November 25, 1996
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
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Ladies and Gentlemen:
Gorges/Quik-to-Fix Foods, Inc., a Delaware corporation (the
"Borrower"), proposes to issue and sell (the "Initial Placement") to the Initial
Purchaser, upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), its 11 1/2% Senior Subordinated Notes Due
2006 (the "Notes"). The Notes will be unconditionally guaranteed, jointly and
severally, on a senior subordinated and unsecured basis the ("Note Guarantees")
by each future direct or indirect Subsidiary (as defined below) of the Borrower
(each, a "Guarantor"). The Initial Placement is to occur concurrently with, and
is conditioned upon, (i) the consummation of the acquisition (the "Acquisition")
by the Borrower of the Gorges/Quik-to-Fix Foods operations of Tyson Foods, Inc.,
pursuant to an asset purchase agreement dated as of October 17, 1996 (the "Asset
Purchase Agreement") by and among the Borrower, Tyson Foods, Inc., Gorges
Foodservice Inc. and Tyson Holding Company; (ii) the execution of, and initial
borrowings under, the senior bank credit facilities among the Borrower, Gorges
Holding Company ("GHC"), as guarantor, NationsBank of Texas, N.A., as agent and
lender, and the other lenders named therein; and (iii) the receipt by the
Borrower of a $45 million equity contribution from GHC. References herein to
the "Company" shall be deemed to refer to the Borrower. As an inducement to the
Initial Purchaser to enter into the Purchase Agreement and purchase the Notes
and in satisfaction of a condition to your obligations under the Purchase
Agreement, the Company agrees with you for the benefit of the holders from time
to time of the Notes (including the Initial Purchaser) (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
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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:
"Affiliate" of any specified person means (i) any other person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person or (ii) any other person who is a
director or executive officer of (a) such specified person or (b) any person
described in the preceding clause (i). For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of any class, or any series of
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any class, of equity securities of a person, whether or not voting, shall be
deemed to be control; and provided, however, that NBIC or any Affiliate (as
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determined without giving effect to this proviso) of NBIC shall not be deemed to
be an Affiliate of any Person solely by reason of its ownership of non-voting
equity securities of such Person.
"Borrower" has the meaning set forth in the preamble hereto.
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"Closing Date" has the meaning set forth in the Purchase Agreement.
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"Commission" means the United States Securities and Exchange
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Commission.
"Company" has the meaning set forth in the preamble hereto.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the 180-day period
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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; provided, however,
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that in the event that all resales of New Notes (including, subject to the time
periods set forth herein, any resales by Exchanging Dealers) covered by such
Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration statement
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of the Company on an appropriate form under the Securities Act with respect to
the Registered Exchange Offer, all 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.
"Exchanging Dealer" means any Holder (which may include the Initial
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Purchaser) that is a broker-dealer, electing to exchange Notes acquired for its
own account as a result of market-making activities or other trading activities
for New Notes.
"Final Memorandum" has the meaning set forth in the Purchase
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Agreement.
"Guarantor" has the meaning set forth in the preamble hereto.
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"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the indenture relating to the Notes and the New
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Notes, to be dated as of the Closing Date, between the Company and IBJ ▇▇▇▇▇▇▇▇
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Bank & Trust Company as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof. It shall include the provisions of the Trust Indenture Act that are
deemed to be part of and govern the indenture.
"Initial Placement" has the meaning set forth in the preamble hereto.
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"Initial Purchaser" has the meaning set forth in the Purchase
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Agreement.
"Liquidated Damages" has the meaning set forth in Section 4 hereof.
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"Losses" has the meaning set forth in Section 7(d) hereto.
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"Majority Holders" means the Holders of a majority of the aggregate
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principal amount of notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering
under a Shelf Registration Statement.
"New Notes" means debt securities of the Company identical in all
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material respects to the Notes (except that the Liquidated Damages provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate), to be issued under the Indenture.
"Note Guarantees" has the meaning set forth in the preamble hereto and
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shall, as applied to the New Notes, mean identical guarantees of the New Notes
by the Guarantors.
"Notes" has the meaning set forth in the preamble hereto.
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"Prospectus" means the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Notes or the New Notes covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
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"Registered Exchange Offer" means the proposed offer to the Holders to
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issue and deliver to such Holders, in exchange for the Notes, a like principal
amount of New Notes.
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"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Notes or the
New Notes (including any Note Guarantees of each thereof) pursuant to the
provisions of this Agreement, 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 Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of the Company pursuant to the provisions of Section 3 hereof, which covers some
or all of the Notes or New Notes, as applicable, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Transfer Restricted Securities" means each Note or New Note, as the
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case may be, until the earliest to occur of (i) the date on which such Note is
exchanged in the Registered Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) the date on which such Note or New Note
has been effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement, and (iii) the date on which such
Note or New Note is resold pursuant to Rule 144 under the Securities Act or by a
broker-dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (the form of which is included as Annex C
hereto) (including delivery of the Prospectus contained therein).
"Trustee" means the trustee with respect to the Notes or New Notes, as
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applicable, under the Indenture.
"underwriter" means any underwriter of Notes in connection with an
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offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Notes by Exchanging
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Dealers; Private Exchange. (a) The Company shall prepare and, on or prior to
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January 31, 1997, shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company shall use
its best efforts (i) to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or prior to March 31, 1997 and
(ii) to consummate the Registered Exchange Offer on or prior to April 30, 1997.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer and
use its best efforts to issue on or prior to 30 days after the date on which the
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Exchange Offer Registration Statement is declared effective by the Commission
New Notes in exchange for all Notes tendered prior thereto in the Registered
Exchange Offer. The objective of such Registered Exchange Offer is to enable
each Holder electing to exchange Notes for New Notes (assuming that such Holder
(x) is not an "affiliate" of the Company within the meaning of the Securities
Act, (y) is not a broker-dealer that acquired the Notes in a transaction other
than as a part of its market-making or other trading activities and (z) if such
Holder is not a broker-dealer, acquires the New Notes in the ordinary course of
such Holder's business, is not participating in the distribution of the New
Notes and has no arrangements or understandings with any person to participate
in the distribution of the New Notes) to resell such New Notes from and after
their receipt without any limitations or restrictions under the Securities 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
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 acceptance for not
less than 30 days and not more than 45 days (or longer if required by
applicable law) after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder New Notes equal in principal amount to the Notes of such Holder so
accepted for exchange.
(e) The Initial Purchaser and the Company acknowledge that, pursuant
to interpretations by the staff of the Commission of Section 5 of the Securities
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any New
Notes received by such Exchanging Dealer pursuant to the Registered Exchange
Offer in exchange for Notes acquired for its own account as a result of market-
making activities or other trading activities. Accordingly, the Company shall:
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(i) include the information set forth in Annex A hereto on the cover
of the Prospectus forming a part 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 Registered
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus included
therein by Exchanging Dealers in connection with sales of New Notes
received pursuant to the Registered Exchange Offer, as contemplated by
Section 5(h) below.
(f) In the event that the Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Notes constituting any portion of an unsold allotment, upon the
effectiveness of the Shelf Registration Statement as contemplated by Section 3
hereof and at the request of the Initial Purchaser, the Company shall issue and
deliver to the Initial Purchaser, or to the party purchasing New Notes
registered under the Shelf Registration Statement from the Initial Purchaser, in
exchange for such Notes, a like principal amount of New Notes. The Company
shall use its best efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for such New Notes as for New Notes issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
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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) the
Registered Exchange Offer is not consummated on or prior to April 30, 1997, or
(iii) the Initial Purchaser so requests with respect to Notes held by it as a
result of the purchase of such Notes directly from the Company following
consummation of the Registered Exchange Offer, or (iv) any Holder (other than
the Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer or the New Notes such Holder would receive in the Registered Exchange
Offer could only be reoffered and resold by such Holder upon compliance with the
registration and prospectus delivery requirements of the Securities Act and the
delivery of the Prospectus contained in the Exchange Offer Registration
Statement, as appropriately amended, is not a legally available alternative, or
(v) in the case where the Initial Purchaser participates in the Registered
Exchange Offer or acquires New Notes pursuant to Section 2(f) hereof, the
Initial Purchaser does not receive freely tradable New Notes in exchange for
Notes constituting any portion of an unsold allotment (it being understood that,
for purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act in connection with sales of New Notes
acquired in exchange for such Notes shall result in such New Notes being not
"freely tradable" and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Notes acquired in the Registered
Exchange Offer in exchange for Notes acquired as a result of market-making
activities or other trading activities
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shall not result in such New Notes being not "freely tradable"), the following
provisions shall apply:
(a) The Company shall, as promptly as practicable (but in no event
more than 60 days after so required or requested pursuant to this Section 3),
file with the Commission a Shelf Registration Statement relating to the offer
and sale of the Notes or the New Notes, as applicable, by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement and Rule 415 under the
Securities Act, provided, that with respect to New Notes received by the Initial
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Purchaser in exchange for Notes constituting any portion of an unsold allotment,
the Company 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 Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of its obligations under this paragraph (a)
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.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to 45 days after filing such Shelf Registration Statement pursuant to this
Section 3 and to keep such Shelf Registration Statement continuously effective
in order to permit the Prospectus contained therein to be usable by Holders for
a period of three years (or, if Rule 144(k) under the Securities Act is amended
to allow for resales pursuant to such Rule after a shorter period, such shorter
period) from the date the Shelf Registration Statement is declared effective by
the Commission or such shorter period that will terminate when all the Notes or
New Notes, 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 shall be deemed not
to have used its best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would result
in Holders of notes covered thereby not being able to offer and sell such notes
during that period, unless (i) such action is required by applicable law or (ii)
such action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if applicable.
(c) No Holder of Notes or New Notes may include any of its Notes or
New Notes in any Shelf Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Company in writing, within 20 business
days after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. No Holder of Notes or
New Notes shall be entitled to Liquidated Damages pursuant to Section 4 hereof
unless and until such Holder shall have used its best efforts to provide all
such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not misleading.
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4. Liquidated Damages. If (i) either the Exchange Offer Registration
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Statement or the Shelf Registration Statement is not filed with the Commission
on or prior to the date specified for such filing in this Agreement, (ii) either
the Exchange Offer Registration Statement or the Shelf Registration Statement
has not been declared effective by the Commission on or prior to the target date
specified for such effectiveness in this Agreement (the "Effectiveness Target
Date"), (iii) the Exchange Offer has not been consummated within 30 days after
the Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) either the Exchange Offer Registration Statement or the Shelf
Registration Statement is filed and declared effective but thereafter ceases to
be effective during the applicable Exchange Offer Registration Period or Shelf
Registration Period, as the case may be (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees to pay
liquidated damages ("Liquidated Damages") to each Holder of Notes with respect
to the first 90-day period immediately following the occurrence of such
Registration Default in an amount equal to $.05 per week per $1,000 principal
amount of Notes held by such Holder for each week or portion thereof during
which such Registration Default continues. The amount of the Liquidated Damages
payable to each Holder for such Registration Default will increase by an
additional $.05 per week per $1,000 in principal amount of Notes held by such
Holder with respect to each subsequent 90-day period until such Registration
Default has been cured, up to an aggregate maximum amount of Liquidated Damages
of $.30 per week per $1,000 principal amount of Notes for all Registration
Defaults. All accrued Liquidated Damages will be paid by the Company on each
Interest Payment Date (as such term is defined in the Indenture) to the Holders
of record with respect to such Interest Payment Date by wire transfer of
immediately available funds or by federal funds check. Liquidated Damages
payable (a) with respect to the Registration Default specified in clause (i)
above, shall cease to accrue upon filing of the Exchange Offer Registration
Statement (and, if applicable, the Shelf Registration Statement), (b) with
respect to the Registration Default specified in clause (ii) above, shall cease
to accrue upon the effectiveness of the Exchange Offer Registration Statement
(and, if applicable, the Shelf Registration Statement), (c) with respect to the
Registration Default specified in clause (iii) above, shall cease to accrue upon
consummation of the Exchange Offer, and (d) with respect to the Registration
Default specified in clause (iv) above, shall cease to accrue upon the filing of
a post-effective amendment to the Registration Statement that causes the
Exchange Offer Registration Statement (and, if applicable, the Shelf
Registration Statement) again to be declared effective, as the case may be.
Following the cure of all Registration Defaults, the accrual of Liquidated
Damages will cease, and all accrued and unpaid Liquidated Damages shall be paid
to Holders of Notes promptly thereafter.
The Company shall notify the Trustee within five days after the
occurrence of each and every Registration Default. The parties hereto agree
that the Liquidated Damages provided for in this Section 4 constitute a
reasonable estimate of the damages that will be incurred by Holders by reason of
any Registration Default.
5. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior to the
filing thereof with the Commission, a copy of any Registration Statement, and
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each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its best efforts to reflect in each
such document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose.
(b) The Company shall use its best efforts to provide that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder;
(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; and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchaser and, in the
case of a Shelf Registration Statement, the Holders of notes covered thereby,
and, if requested by the Initial Purchaser or any such Holder, confirm such
advice in writing:
(i) when a 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; and
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus included therein or for
additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
notes covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by the
Initial Purchaser or any such Holder or Exchanging Dealer, confirm such advice
in writing:
(i) 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;
(ii) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the notes included therein for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
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(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of such
date, the Registration Statement or the Prospectus does not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made).
Each Holder agrees by acquisition of a Note or a New Note that, upon receipt of
any notice from the Company of the existence of any fact of the kind described
in paragraph (iii) above, such Holder will forthwith discontinue disposition of
Notes or New Notes, as the case may be, pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
concerning such Notes or New Notes that was current at the time of receipt of
such notice.
(d) The Company shall use every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of notes covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of notes 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 amendment or supplement
thereto as such Holder may reasonably request; and the Company consents to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of notes in connection with the offering and sale of the notes
covered by the Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein and,
if the Exchanging Dealer so requests in writing, all exhibits thereto (including
those incorporated by reference).
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Exchanging Dealer may reasonably request
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for delivery in connection with a sale of New Notes received by it pursuant to
the Registered Exchange Offer; and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by any such Exchanging Dealer,
as provided in Section (2)(e) above.
(i) Prior to the Registered Exchange Offer or any other offering of
notes pursuant to any Registration Statement, the Company shall register or
qualify or cooperate with the Holders of notes included therein and their
respective counsel in connection with the registration or qualification of such
notes for offer and sale under the securities or blue sky laws of such states as
any such Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such states of the
notes covered by such Registration Statement; provided, however, that the
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Company will not be required to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not then so qualified, to file
any general consent to service of process or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(j) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing notes to be sold
pursuant to any Registration Statement free of any restrictive legends and in
denominations of $1,000 or an integral multiple thereof and registered in such
names as Holders may request prior to sales of notes pursuant to such
Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Company shall use every reasonable effort to
promptly prepare and file a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any other
required document so that, as thereafter delivered to purchasers of the notes
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 light of the circumstances under which they were made,
not misleading.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the Notes or
New Notes, as the case may be, registered under such Registration Statement, and
provide the Trustee with printed certificates for such Notes or New Notes, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company shall use every reasonable effort to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable, but in any event not
later than 15 months, after the effective date of the applicable Registration
Statement an earnings statement (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(n) The Company shall use every reasonable effort to cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), in a timely manner.
11
(o) The Company may require each Holder of notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such notes as the Company may from
time to time reasonably require for inclusion in such Registration Statement and
such other information as may be necessary or advisable in the reasonable
opinion of the Company and its counsel, in connection with any Registration
Statement. No Holder of Notes or New Notes shall be entitled to use a
Prospectus unless and until such Holder shall have furnished the reasonably
requested information required by this Section 5(o), and shall have committed to
notify the Company promptly of any change in such information.
(p) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information to which the Company does not reasonably object as
the Managing Underwriters, if any, and Majority Holders reasonably agree should
be included therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements (including underwriting agreements in form and
scope as is customary for similar offerings of debt securities) and take all
other customary and appropriate actions in order to expedite or to facilitate
the registration or the disposition of any notes included therein, 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.
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders of notes
to be registered thereunder, any underwriter participating in any
disposition pursuant to such Shelf 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;
(ii) cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement, as is customary for similar due diligence
examinations and make such representatives of the Company as shall be
reasonably requested by the Initial Purchaser available for discussion of
any such Registration Statement; 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
12
other than as a result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the Holders of
notes registered thereunder and the underwriters, if any, in form,
substance and scope, and at such time or times, as are customarily made by
issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them;
(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 the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters and
time periods as are customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(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 the underwriters, if any, and use
reasonable efforts to have such letter addressed to the selling Holders of
notes registered thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants (AICPA) ("SAS 72")), in customary form and covering matters and
time periods of the type customarily covered in "cold comfort" letters in
connection with similar underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
and customarily delivered in similar offerings, including those to evidence
compliance with Section 5(k) and with any conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 5(r) shall be performed at (A) the effectiveness of such Shelf
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.
(s) The Company shall, if and to the extent required under the
Securities Act and/or the Trust Indenture Act and the rules and regulations
thereunder in order to register the Notes (including the Note Guarantees, if
any) under the Securities Act and qualify the Indenture under the Trust
Indenture Act, cause each Guarantor, if any, to sign any Registration Statement
and take all other action necessary to register the Note Guarantees, if any,
under the applicable Registration Statement.
6. Registration Expenses. The Company shall bear all expenses
---------------------
incurred in connection with the performance of its obligations under Sections 2,
13
3, 4 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 Purchaser for the reasonable fees and
disbursements of counsel acting in connection therewith.
7. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Company agrees to indemnify and hold harmless to the
fullest extent lawful each Holder of notes covered thereby (including the
Initial Purchaser and, with respect to any Prospectus delivery as contemplated
by Sections 2(e) and 5(h) hereof, each Exchanging Dealer) the directors,
officers, employees and agents of such Holder and each person who controls such
Holder within the meaning of either the Securities 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 Securities 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 such Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) 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 or liability (or action in respect thereof); provided, however,
-------- -------
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability (A) 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 by or on behalf of any such Holder specifically for
inclusion therein or (B) are caused by an untrue statement or omission that was
contained or made in any preliminary prospectus and corrected in the related
Prospectus or any supplement or amendment thereto and (1) any such losses,
claims, damages, liabilities or expenses suffered or incurred by any indemnified
party resulted from an action, claim or suit by any person who purchased Notes
or New Notes from a Holder in the offering to which such Prospectus relates, (2)
such Holder failed to deliver or provide a copy of such Prospectus or any such
supplement or amendment thereto to such person at or prior to the confirmation
of the sale of such Notes in any case where such delivery is required by the
Securities Act and (3) such Prospectus (as so amended and supplemented) would
have cured the defect giving rise to such loss, liability, claim, damage or
expense. The indemnification provided herein will be in addition to any
liability that the Company may otherwise have.
The Company also agrees to indemnify or contribute to the Losses of,
as provided in Section 7(d) hereof, any underwriters of notes registered under a
Shelf Registration Statement, their employees, officers, directors and agents
and each person who controls such underwriters on the same basis (including the
proviso) as that of the indemnification of the Initial Purchaser 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(q) hereof.
14
(b) Each Holder of notes covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 5(h) hereof, each Exchanging Dealer)
severally and not jointly agrees to indemnify and hold harmless the Company, its
directors, officers, employees, agents and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each such Holder, but only
with respect to written information furnished to the Company 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 that any such Holder may otherwise have.
(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 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party 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 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 (including local 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 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 (and local 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 that 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 (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for such indemnified persons). An indemnifying party or an indemnified
party will not, without the prior written consent of the indemnified parties or
the indemnifying parties, as the case may be, 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 or the
indemnifying parties, as the case may be, are actual or potential parties to
15
such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party or indemnifying party, as the
case may be, 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 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the 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 that resulted in such Losses; provided, however, that in
-------- -------
no case shall the Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such Note,
or in the case of an Exchange Note, applicable to the Note that was exchangeable
into such Exchange Note, 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 notes purchased by such
underwriter under the Registration Statement that resulted in such Losses; and
provided further, however, that in no case shall any subsequent Holder of any
-------- ------- -------
Note or Exchange Note be responsible, in the aggregate, for any amount in excess
of the total proceeds received by such Holder for the sale of Notes or New Notes
giving rise to the indemnification liability. 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 that resulted
in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the sum of (x) the total
net proceeds from the Initial Placement (before deducting expenses) as set forth
on the cover page of the Final Memorandum and (y) the total amount of Liquidated
Damages that the Company was not required to pay as a result of registering the
notes covered by the Registration Statement that resulted in such Losses.
Benefits received by the Initial Purchaser shall be deemed to be equal to the
total purchase discounts and commissions as set forth on the cover page of the
Final Memorandum received by such Initial Purchaser, and benefits received by
any other Holders shall be deemed to be equal to the total proceeds received by
such Holder upon the sale of Notes or New Notes giving rise to the
indemnification obligation 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
that resulted in such Losses received by such underwriter. 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 amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities, expenses or judgments referred to above shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
person in connection with investigating or defending any such action or claim.
The parties agree that it would not be just and equitable if contribution were
16
determined by pro rata allocation or any other method of allocation that did 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls a Holder within the meaning of either the Securities 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 within the meaning of either the Securities Act or the
Exchange Act, each director, officer, employee and agent of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
8(d), notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8(d) or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided, however, that such written consent was not
-------- -------
unreasonably withheld.
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive the sale by a Holder of notes covered by a
Registration Statement.
8. Miscellaneous.
-------------
(a) Remedies. Each Holder, in addition to being entitled to exercise
--------
all rights provided herein, in the Indenture or in the Purchase Agreement
(provided that with respect to any Holder other than the Initial Purchaser, the
rights under the Purchase Agreement shall be limited to those set forth in
Section 5(i) thereof) or granted by law, including recovery of liquidated or
other damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages (including the Liquidated
Damages contemplated hereby) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby waives the defense in any action for specific performance that a remedy
at law would be adequate.
(b) 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 that conflicts with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(c) 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 Holders of at least a majority of the then-outstanding aggregate
principal amount of Notes (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of New Notes); provided that, with respect to
--------
17
any matter that directly or indirectly affects the rights of the Initial
Purchaser hereunder, the Company shall obtain the written consent of the Initial
Purchaser. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose notes 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 Majority
Holders, determined on the basis of notes being sold rather than registered
under such Registration Statement.
(d) 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:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), 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 the Initial Purchaser;
(ii) if to the Initial Purchaser, initially at NationsBank
Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
(iii) if to the Company, initially c/o CGW Southeast Partners III,
L.P., Suite 210, Twelve Piedmont Center, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & Bird, One
Atlantic Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchaser, on the one hand, or the Company, on
the other, by notice to the other party or parties may designate additional or
different addresses for subsequent notices or communications.
(e) Successors and Assigns. 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 Notes and/or New Notes; provided,
--------
however, that this Agreement shall not inure to the benefit of or be binding
-------
upon a sucessor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder. Subject to the
proviso contained in the immediately preceding sentence, the Company hereby
agrees to extend the benefits of this Agreement to any Holder of Notes and/or
New Notes and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(f) Counterparts. This agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this agreement are for convenience of
--------
18
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SAID STATE.
(i) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in 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.
(j) Notes Held by the Company, etc. Whenever the consent or approval
-------------------------------
of Holders of a specified percentage of principal amount of Notes or New Notes
is required hereunder, Notes or New Notes, as applicable, held by the Company or
its Affiliates (other than subsequent Holders of Notes or New Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Notes or New Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(k) Participation In Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten Shelf Registration hereunder unless such Holder
(a) agrees to sell such Holder's Notes or New Notes, as the case may be, on the
basis provided in any underwriting arrangements approved by the Company and the
Majority Holders and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
(l) Selection of Underwriters. The Holders of Notes or New Notes
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell such
notes in an underwritten offering. In any such underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Majority Holders of notes
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Company.
19
Please confirm that the foregoing correctly sets forth the agreement between the
Company and you.
Very truly yours,
GORGES/QUIK-TO-FIX FOODS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: President
The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
20
ANNEX A
Each broker-dealer that receives New Notes 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 Notes. 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 Notes received in
exchange for Notes where such Notes 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."
A-1
ANNEX B
Each broker-dealer that receives New Notes for its own account in exchange for
Notes, where such Notes 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 Notes. See
"Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes 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 Notes. 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 Notes received in exchange for Notes
where such Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration
Date and ending on the close of business 180 days after the Expiration Date, it
will make this Prospectus, as amended or supplemented, available to any broker-
dealer for use in connection with any such resale. In addition, until
____________, 199__, all dealers effecting transactions in the New Notes may be
required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Notes
by broker-dealers. New Notes 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 Notes 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 Notes. Any broker-dealer that
resells New Notes 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 Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit from any such resale of New Notes 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 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
holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
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:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
Rider B
-------
The undersigned represents that it is not an affiliate of the Company,
that any New Notes to be received by it will be acquired in the ordinary course
of business and that at the time of the commencement of the Exchange Offer it
had no arrangement with any person to participate in a distribution of the New
Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of New Notes. If the undersigned is a broker-dealer that
will receive New Notes for its own account in exchange for Notes, it represents
that the Notes to be exchanged for New Notes 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 Notes;
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.
D-1