REGISTRATION RIGHTS AGREEMENT between Seneca Foods Corporation and John Hancock Life Insurance Company and John Hancock Variable Life Insurance Company Dated as of August 18, 2006
Exhibit
10.2
between
Seneca
Foods Corporation
and
▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Company
and
▇▇▇▇
▇▇▇▇▇▇▇ Variable Life Insurance Company
Dated
as
of August 18, 2006
TABLE
OF
CONTENTS
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Page
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1.
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Background.
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1
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2.
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Registration
Under Securities Act, etc.
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1
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2.1
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Registration
on Request.
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1
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2.2
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Incidental
Registration.
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3
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2.3
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Registration
Procedures.
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4
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2.4
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Underwritten
Offerings.
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7
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2.5
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Preparation;
Reasonable Investigation.
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8
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2.6
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Limitations,
Conditions and Qualifications to Obligations under Registration
Covenants.
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8
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2.7
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Indemnification.
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9
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3.
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Definitions.
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11
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4.
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Rule
144.
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13
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5.
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Amendments
and Waivers.
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14
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6.
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Nominees
for Beneficial Owners.
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14
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7.
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Notices.
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14
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8.
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Assignment.
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15
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9.
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Calculation
of Percentage Interests in Registrable Securities.
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15
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10.
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No
Inconsistent Agreements.
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15
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11.
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Remedies.
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15
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12.
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Severability.
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15
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13.
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Entire
Agreement.
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15
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14.
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Headings.
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16
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15.
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Governing
Law.
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16
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16.
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Counterparts.
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16
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REGISTRATION
RIGHTS AGREEMENT, dated as of August 18, 2006 between Seneca Foods Corporation,
a New York corporation (the “Company”), and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company,
a Massachusetts corporation (“JHLIC”) and ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance
Company, a Massachusetts corporation (“JHVLIC” and collectively with JHLIC,
“▇▇▇▇▇▇▇”).
The
parties hereby agree as follows:
1. Background.
The
Company and ▇▇▇▇▇▇▇ are the parties to the Purchase Agreement dated as of August
18, 2006 (the “Purchase Agreement”), pursuant to which ▇▇▇▇▇▇▇ is receiving on
the date hereof 1,025,220 shares of Convertible Participating Preferred Stock,
Series 2006 of the Company (the “Shares”).
2. Registration
Under Securities Act, etc.
2.1 Registration
on Request.
(a) Request.
At
any
time after February 18, 2007, upon the written request of one or more holders
(the “Initiating Holders”) of Registrable Securities holding at least 25% of the
Registrable Securities (assuming the conversion of the Shares into Class A
Common Stock) that the Company effect the registration under the Securities
Act
of all or part of such Initiating Holders*
Registrable Securities, the Company promptly will give written notice of such
requested registration to all registered holders of Registrable Securities,
and
thereupon the Company will use its best efforts to effect, at the earliest
possible date, the registration under the Securities Act, of
(i) the
Registrable Securities which the Company has been so requested to register
by
such Initiating Holders, and
(ii) all
other
Registrable Securities which the Company has been requested to register by
the
holders thereof (such holders together with the Initiating Holders hereinafter
are referred to as the “Selling Holders”) by written request given to the
Company within 30 days after the giving of such written notice by the Company,
all to the extent necessary to permit the disposition of the Registrable
Securities so to be registered.
(b) Registration
of Other Securities.
Whenever
the Company shall effect a registration pursuant to this Section 2.1, no
securities other than Registrable Securities shall be included among the
securities covered by such registration unless the Selling Holders of not less
than 66-2/3% of all Registrable Securities (assuming the conversion of the
Shares into Class A Common Stock) to be covered by such registration shall
have
consented in writing to the inclusion of such other securities.
(c) Registration
Statement Form.
Registrations
under this Section 2.1 shall be on such appropriate registration form of the
Commission as shall be reasonably selected by the Company; provided that, upon
the request of the Selling Holders, the Company shall effect such registration
pursuant to Rule 415 under the Securities Act.
(d) Effective
Registration Statement.
A
registration requested pursuant to this Section 2.1 shall not be deemed to
have
been effected (i) unless a registration statement with respect thereto has
become effective and remained effective in compliance with the provisions of
the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement (unless the failure to so dispose of such Registrable
Securities shall be caused solely by reason of a failure on the part of the
Selling Holders); provided, that such period, except with respect to a
registration pursuant to Rule 415 under the Act, need not exceed 135 days,
(ii)
if, after it has become effective, such registration is interfered with by
any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable solely to the
Selling Holders, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than solely by reason of a
failure on the part of the Selling Holders.
(e) Selection
of Underwriters.
The
underwriter or underwriters of each underwritten offering of the Registrable
Securities so to be registered shall be selected by the Selling Holders of
more
than 50% of the Registrable Securities (assuming the conversion of the Shares
into Class A Common Stock) to be included in such registration and shall be
reasonably acceptable to the Company.
(f) Priority
in Requested Registration.
If
the
managing underwriter of any underwritten offering shall advise the Company
(and
the Company shall so advise each Selling Holder of Registrable Securities
requesting registration of such advice) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Selling Holders of 66-2/3% of the Registrable Securities (assuming the
conversion of the Shares into Class A Common Stock) requested to be included
in
such registration, the Company, except as provided in the following sentence,
will include in such registration, to the extent of the number and type which
the Company is so advised can be sold in such offering, first, Registrable
Securities requested to be included in such registration, pro rata (based on
the
number of Registrable Securities held by each of the Selling Holders) among
the
Selling Holders requesting such registration, second, all securities proposed
to
be sold by the Company for its own account, and third, any Third Party
Securities requested to be included in such registration. Notwithstanding the
foregoing, if the total number of Registrable Securities requested to be
included in any registration cannot be included, holders of Registrable
Securities requesting registration thereof pursuant to Section 2.1, representing
not less than 50% of the Registrable Securities (assuming the conversion of
the
Shares into Class Common Stock) with respect to which registration has been
requested, shall have the right to withdraw the request for registration of
all
such Registrable Securities by giving written notice to the Company within
20
days after receipt of the notice from the managing underwriter described above
by the Company and, in the event of such withdrawal, such request for all
Registrable Securities shall not be counted for purposes of the requests for
registration to which holders of Registrable Securities are entitled pursuant
to
Section 2.1 hereof.
(g) Limitations
on Registration Requests.
Notwithstanding
anything in this Section 2.1 to the contrary, in no event will the Company
be
required to (i) effect a registration pursuant to this Section 2.1 within the
six-month period occurring immediately subsequent to the effectiveness (within
the meaning of Section 2.1(d)) of a registration statement filed pursuant to
this Section 2.1, unless a majority of the Disinterested Directors determines
that effecting a second registration within the six-month period would not
have
a material adverse effect on the market price of the Common Stock, (ii) effect
a
registration with respect to any class of Registrable Securities pursuant to
Section 2.1 covering less than forty percent (40%) of the Registrable Securities
(assuming the conversion of the Shares into Class A Common Stock), or (iii)
all
Registrable Securities can be sold without restriction (including any
restriction on volume or as to manner of sale) pursuant to Rule 144 under the
Securities Act.
(h) Expenses.
The
Selling Holders will pay all Registration Expenses in connection with any
registrations requested pursuant to this Section 2.1, allocated pro rata (based
on the number and type of Registrable Securities of each of the Selling Holders
included in the registration under this Section 2.1) and all other fees and
expenses, if any, incident to the Company*s
performance of or compliance with Section 2.1 incurred by the Company (other
than compensation of its employees and other overhead costs); provided, however,
that if a registration is withdrawn under Section 2.6, then the Company will
pay
all expenses related to such registration incident to its performance of or
compliance with Section 2.1 (including all Registration Expenses); and provided
further, that if a registration under Section 2.1 includes any securities other
than the Registrable Securities, the Company will pay all expenses related
to
such registration incident to its performance of or compliance with this Section
2.1 (including all Registration Expenses other than Fee Expenses) and the
Selling Holders will pay all Fee Expenses allocated pro rata (based on the
number and type of Registrable Securities of each of the Selling Holders
included in the registration under this Section 2.1).
2.2 Incidental
Registration.
(a) Right
to Include Registrable Securities.
If
the
Company at any time proposes to register any of its Common Stock or any other
class of Registrable Securities or other securities convertible into or
exchangeable for shares of its Common Stock or any other class of Registrable
Securities under the Securities Act by registration on any form other than
Forms
S-4 or S-8 (or any successor forms), whether or not for sale for its own
account, it will each such time give prompt written notice to all registered
holders of Registrable Securities of its intention to do so and of such
holders*
rights
under this Section 2.2. Upon the written request of any such holder (a
“Requesting Holder”) made as promptly as practicable and in any event within 30
days after the receipt of any such notice from the Company (which request shall
specify the Registrable Securities intended to he disposed of by such Requesting
Holder), the Company shall use its best efforts to effect the registration
under
the Securities Act of all Registrable Securities which the Company has been
so
requested to register by the Requesting Holders thereof; provided, that prior
to
the effective date of the registration statement filed in connection with such
registration, immediately upon notification to the Company from the managing
underwriter of the price at which such securities are to be sold, if such price
is below the price which any Requesting Holder shall have indicated to be
acceptable to such Requesting Holder, the Company shall so advise such
Requesting Holder of such price, and such Requesting Holder shall then have
the
right to withdraw its request to have its Registrable Securities included in
such registration statement; provided, further, however, that if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Requesting Holder
of
Registrable Securities and (x) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities
in
connection with such registration, without prejudice, however, to the rights
of
any holder or holders of Registrable Securities entitled to do so to cause
such
registration to be effected as a registration under Section 2.1, and (y) in
the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
2.2 shall relieve the Company of its obligation to effect any registration
upon
request under Section 2.1.
(b) Priority
in Incidental Registrations.
If
the
managing underwriter of any underwritten offering shall inform the Company
by
letter of its opinion that the number or type of Registrable Securities and
Third Party Securities requested to be included in such registration would
materially adversely affect such offering, and the Company has so advised the
Requesting Holders in writing, then the Company will include in such
registration, to the extent of the number and type which the Company is so
advised can be sold in (or during the time of) such offering, first, all
securities proposed by the Company to be sold for its own account, second,
such
Registrable Securities requested to be included in such registration pursuant
to
this Agreement, pro rata (based on the number of Registrable Securities
requested to be included therein by each Selling Holder) among such Selling
Holders and third, any Third Party Securities.
(c) Expenses.
The
Company will pay all fees and expenses incident to its performance of or
compliance with this Section 2.2 (other than Fee Expenses) and the Requesting
Holders will pay all Fee Expenses, allocated pro rata (based on the number
and
type of Registrable Securities of each of the Requesting Holders included in
the
registration under this Section 2.2); provided, however, that if any Registrable
Securities are withdrawn from a registration pursuant to Section 2.2(a) or
(b),
then the Company shall pay all Fee Expenses related to such Registrable
Securities.
(d) Pillsbury
and Marks Registration.
Notwithstanding
anything contained herein to the contrary, (i) ▇▇▇▇▇▇▇ shall have no rights
to
participate in any registration of the Company*s
securities occurring at the request of The Pillsbury Company or its successor
in
interest, General ▇▇▇▇▇ Operations, Inc. (“Pillsbury”) pursuant to the terms of
the Purchase and Registration Rights Agreement, dated as of March 15, 1996,
as
amended, between the Company and Pillsbury or at the request of any of the
parties to the Registration Rights Agreement dated as of June 22, 1998 among
the
Company, ▇▇▇▇ ▇▇▇▇▇ Strategic Investments, L.P. and several of its affiliates
pursuant to the terms of such Agreement (collectively “Marks”), and (ii)
▇▇▇▇▇▇▇’▇ rights under this Section 2.1 shall in all respects be subordinate to
the rights of Pillsbury and Marks under the agreements referred to in the
previous clause except as Marks, the Company and the Holders may otherwise
agree.
2.3 Registration
Procedures.
If
and
whenever the Company is required to use its best efforts to effect the
registration of any Registrable Securities under the Securities Act as provided
in Sections 2.1 and 2.2, the Company will, as expeditiously as
possible:
(i) prepare
and (as promptly as practicable, but in any event within 60 days after the
request for registration is given to the Company) file with the Commission
the
requisite registration statement to effect such registration and thereafter
use
its best efforts to cause such registration statement to become effective;
provided, however, that the Company may discontinue any registration of its
securities which are not Registrable Securities (and, under the circumstances
specified in Section 2.2(b), Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto;
(ii) prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be
necessary to keep such registration statement effective in accordance with
Section 2.1(d)(i) hereof and to comply with the provisions of the Securities
Act
with respect to the disposition of all Registrable Securities covered by such
registration statement until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition
by
the seller or sellers thereof set forth in such registration statement;
provided, that except with respect to any such registration statement filed
pursuant to Rule 415 under the Securities Act, such period need not exceed
135
days, and, for any registration statement filed pursuant to such Rule 415,
such
period shall not exceed two years.;
(iii) furnish
to each seller of Registrable Securities covered by such registration statement,
such number of conformed copies of such registration statement and of each
such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any
other
prospectus filed under Rule 424 under the Securities Act, in conformity with
the
requirements of the Securities Act, and such other documents, as such seller
may
reasonably request;
(iv)
use
commercially reasonable efforts (x) to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such States of the United States
of
America where an exemption is not available and as the sellers of Registrable
Securities covered by such registration statement shall reasonably request,
(y)
to keep such registration or qualification in effect for so long as such
registration statement remains in effect and (z) to take any other action which
may be reasonably necessary or advisable to enable such sellers to consummate
the disposition in such jurisdictions of the securities to be sold by such
sellers, except that the Company shall not for any such purpose be required
to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (iv) be
obligated to be so qualified or to consent to general service of process in
any
such jurisdiction;
(v) use
commercially reasonable efforts to cause all Registrable Securities covered
by
such registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary in
the
reasonable opinion of counsel to the Company and counsel to the seller or
sellers of Registrable Securities to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) furnish
at the effective date of such registration statement to each seller of
Registrable Securities, and each such seller*s
underwriters, if any, a signed counterpart of:
(x) an
opinion of counsel for the Company, dated the effective date of such
registration statement and, if applicable, the date of the closing under the
underwriting agreement, and
(y) a
“comfort” letter signed by the independent public accountants who have certified
the Company*s
financial statements included or incorporated by reference in such registration
statement,
covering
substantially the same matters with respect to such registration statement
(and
the prospectus included therein) and, in the case of the accountants*
comfort
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer*s
counsel
and in accountants*
comfort
letters delivered to the underwriters in underwritten public offerings of
securities and, in the case of the accountants*
comfort
letter, such other financial matters, and, in the case of the legal opinion,
such other legal matters, as the underwriters may reasonably
request;
(vii) notify
each seller of Registrable Securities covered by such registration statement
at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event
as a
result of which, the prospectus included in such registration statement, as
then
in effect, includes an untrue statement of a material fact or omits to state
any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they
were
made, and at the request of any such seller promptly prepare and furnish to
it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the Seller
of
such Registrable Securities, such prospectus shall not include 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 in
the
light of the circumstances under which they were made;
(viii) otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission and, if requested by any underwriter for the
Holders, make available to its security holders, as soon as reasonably
practicable (but not more than 18 months after the effective date of such
registration statement), an earnings statement covering the period of at least
12 months beginning with the first full calendar month after the effective
date
of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(ix) provide
and cause to be maintained a transfer agent and registrar (which, in each case,
may be the Company) for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration;
(x) use
commercially reasonable efforts to cause all Registrable Securities, other
than
the Shares, covered by such registration statement either (a) to be listed
on
any national securities exchange on which Registrable Securities of the same
class covered by such registration statement are then listed or (b) to be
approved for quotation on any over the counter market on which Registrable
Securities of the same class covered by any such registration statement are
then
quoted, and, if no such Registrable Securities are so listed or quoted, either
(x) on any national securities exchange on which the Common Stock is then listed
or (y) approved for quotation on any over the counter market on which the Common
Stock is then quoted.
(xi) cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter (including
any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of the NASD.
The
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company (i) such information
regarding such seller and the distribution of such securities as the Company
may
from time to time reasonably request in writing and (ii) if requested by the
Company, an executed custody agreement and power of attorney in form and
substance reasonably satisfactory to the Company with respect to the Registrable
Securities to be registered pursuant to this Agreement.
Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening
of
any event of the kind described in subdivision (vii) of this Section 2.3, such
holder will forthwith discontinue such holder*s
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder*s
receipt
of the copies of the supplemented or amended prospectus contemplated by
subdivision (vii) of this Section 2.3 and, if so directed by the Company, 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 relating to such Registrable Securities current
at
the time of receipt of such notice.
If
a
registration statement filed pursuant to Section 2.1(c) hereof is subject to
Rule 415 under the Securities Act, the Company shall use its best efforts to
keep the registration statement continuously effective until the earlier to
occur of (i) the time at which the Holders no longer own, beneficially or
otherwise, any Registrable Securities or (ii) the second anniversary of the
effective date of the registration statement (the “Registration Period”). The
Company shall amend the registration statement if and as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for the registration statement or by the Securities Act or any rules
or
regulations promulgated thereunder.
2.4 Underwritten
Offerings.
(a) Requested
Underwritten Offerings.
If
requested by the underwriters for any underwritten offering by holders of
Registrable Securities pursuant to a registration requested under Section 2.1,
the Company will enter into an underwriting agreement with such underwriters
for
such offering, such agreement to be in customary form and reasonably
satisfactory in substance and form to each such holder, the underwriters and
the
Company. The holders of the Registrable Securities proposed to be sold by such
underwriters will reasonably cooperate with the Company in the negotiation
of
the underwriting agreement. No holder of Registrable Securities shall be
required to make any representations or warranties to or agreements with the
Company other than representations, warranties or agreements regarding such
holder, such holder*s
Registrable Securities and such holder*s
intended method of distribution or any other representations required by
applicable law.
(b) Incidental
Underwritten Offerings.
If
the
Company proposes to register any of its securities under the Securities Act
as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any
Requesting Holder of Registrable Securities, use its best efforts to arrange
for
such underwriters to include all the Registrable Securities to be offered and
sold by such Requesting Holder among the securities of the Company to be
distributed by such underwriters, subject to the provisions of Section 2.2(b).
Any such Requesting Holder of Registrable Securities shall not be required
to
make any representations or warranties to or agreements with the Company or
the
underwriters other than representations, warranties or agreements regarding
such
Requesting Holder, such Requesting Holder*s
Registrable Securities and such Requesting Holders s intended method of
distribution or any other representations required by applicable
law.
2.5 Preparation;
Reasonable Investigation.
In
connection with the preparation and filing of each registration statement under
the Securities Act pursuant to this Agreement, the Company will give the holders
of Registrable Securities to be registered under such registration statement,
their underwriters, if any, and their respective counsel the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such reasonable access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified
its
financial statements as shall be necessary, in the opinion of such
holders*
and such
underwriters*
respective counsel, to conduct a reasonable investigation within the meaning
of
the Securities Act.
2.6 Limitations,
Conditions and Qualifications to Obligations under Registration
Covenants.
The
Company shall be entitled to postpone for a reasonable period of time (but
not
exceeding 90 days) the filing of any registration statement otherwise required
to be prepared and filed by it pursuant to Section 2.1 if the Company
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, acquisition, corporate reorganization or
other material transaction involving the Company and promptly gives the holders
of Registrable Securities requesting registration thereof pursuant to Section
2.1 written notice of such determination, containing a general statement of
the
reasons for such postponement and an approximation of the anticipated delay.
If
the Company shall so postpone the filing of a registration statement, holders
of
Registrable Securities requesting registration thereof pursuant to Section
2.1,
representing not less than 50% of the Registrable Securities (assuming the
conversion of the Shares into Class A Common Stock) with respect to which
registration has been requested, shall have the right to withdraw the request
for registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement and, in the event of such withdrawal,
such
request shall not be counted for purposes of the requests for registration
to
which holders of Registrable Securities are entitled pursuant to Section 2.1
hereof.
2.7 Indemnification.
(a) Indemnification
by the Company.
The
Company will, and hereby does, indemnify and hold harmless, in the case of
any
registration statement filed pursuant to Section 2.1 or 2.2, each seller of
any
Registrable Securities covered by such registration statement and each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act or the Exchange Act, and
their respective directors, officers, partners, agents and affiliates, against
any losses, claims, damages or liabilities, joint or several, to which such
seller or underwriter or any such director, officer, partner, agent, affiliate
or controlling person may become subject under the Securities Act or otherwise,
including, without limitation, the reasonable fees and expenses of legal
counsel, insofar as such losses, claims, damages or liabilities (or actions
or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment
or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such seller or
underwriter and each such director, officer, partner, agent, affiliate and
controlling Person for any reasonable legal or any other expenses incurred
by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall
not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out
of
or is based upon an untrue statement or alleged untrue statement or omission
or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement of any material
fact
contained in any such registration statement, preliminary prospectus, final
prospectus or summary prospectus contained therein or any omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein in light of the circumstances in which they were made not
misleading in a prospectus or prospectus supplement, if such untrue statement
or
omission is completely corrected in an amendment or supplement to such
prospectus or prospectus supplement, the seller of the Registrable Securities
has an obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with
a
sufficient number of copies of the same. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
seller or underwriter or any such director, officer, partner, agent, affiliate
or controlling person and shall survive the transfer of such securities by
such
seller or underwriter.
(b) Indemnification
by the Sellers.
As
a
condition to including any Registrable Securities in any registration statement,
the Company shall have received an undertaking reasonably satisfactory to it
from the prospective seller of such Registrable Securities, to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
2.7(a)) the Company, and each director of the Company, each officer of the
Company and each other Person, if any, who participates as an underwriter in
the
offering or sale of such securities and each other Person who controls the
Company or any such underwriter within the meaning of the Securities Act or
the
Exchange Act, with respect to any statement or alleged statement in or omission
or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such seller specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of proceeds received
by
such indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer of such securities by such
seller.
(c) Notices
of Claims, etc.
Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in Section 2.7(a) or (b),
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement
of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of
its
obligations under the preceding subdivisions of this Section 2.7, except to
the
extent that the indemnifying party is actually and materially prejudiced by
such
failure to give notice. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and,
to
the extent that it may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that
any
indemnified party may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any action or
proceeding in which both the Company and an indemnified party is, or is
reasonably likely to become, a party, such indemnified party shall have the
right to employ separate counsel at the Company*s
expense
and to control its own defense of such action or proceeding if, in the opinion
of counsel to such indemnified party, (a) there are or may be legal defenses
available to such indemnified party or to other indemnified parties that are
different from or additional to those available to the Company or (b) any
conflict or potential conflict exists between the Company and such indemnified
party that would make such separate representation advisable; provided, however,
that in no event shall the Company be required to pay fees and expenses under
this Section 2.7 for more than one firm of attorneys representing the
indemnified parties (together, if appropriate, with one firm of local counsel
per jurisdiction) in any one legal action or group of related legal actions.
No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing sentence, if at any time
an
indemnified party shall have requested the indemnifying party to reimburse
the
indemnified party for fees and expenses of counsel as contemplated by this
Section 2.7, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without the indemnifying party*s
written
consent if (i) such settlement is entered into more than thirty (30) days after
receipt by the indemnifying party of the aforesaid request, and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the consent of the indemnified party, which consent shall not
be
unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation or which requires action other
than the payment of money by the indemnifying party.
(d) Contribution.
If
the
indemnification provided for in this Section 2.7 shall for any reason be held
by
a court to be unavailable to an indemnified party under Section 2.7(a) or (b)
hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, then, in lieu of the amount paid or payable under Section
2.7(a) or (b), the indemnified party and the indemnifying party under Section
2.7(a) or (b) shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is appropriate to
reflect the relative fault of the Company and the sellers or prospective sellers
of Registrable Securities covered by the registration statement which resulted
in such loss, claim, damage or liability, or action or proceeding in respect
thereof, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action or proceeding in respect thereof,
as
well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received
by
the Company and such sellers or prospective sellers from the offering of the
securities covered by such registration statement, provided, that for purposes
of this Section 2.7(d), the amounts required to be contributed by the sellers
or
prospective sellers of Registrable Securities shall not exceed the amount of
proceeds received by such sellers or prospective sellers. 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. Such sellers or prospective
sellers*
obligations to contribute as provided in this Section 2.7(d) are several in
proportion to the relative value of their respective Registrable Securities
covered by such registration statement and not joint.
(e) Indemnification
Payments.
The
indemnification and contribution required by this Section 2.7 shall be made
by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred.
3. Definitions.
As
used
herein, unless the context otherwise requires, the following terms have the
following respective meanings:
“Affiliate”
has the meaning set forth in Rule 12b-2 of the regulations promulgated under
the
Exchange Act.
“Commission”
means the Securities and Exchange Commission or any other federal agency at
the
time administering the Securities Act.
“Class
A
Common Stock” means the Company’s Class A common stock, par value $0.25 per
share.
“Common
Stock” shall mean and include: (i) the Class A common stock, par value $.25 per
share, of the Company, (ii) the Class B common stock, par value $.25 per share,
of the Company, and (iii) each other class of capital stock of the Company
that
does not have a preference over any other class of capital stock of the Company
as to dividends or upon liquidation, dissolution or winding up of the Company
and, in each case, shall include any other class of capital stock of the Company
into which such stock is reclassified or reconstituted.
“Disinterested
Director” means, with respect to any transaction or series of related
transactions, a member of the board of directors of the Company who does not
have any material direct or indirect financial interest in or with respect
to
such transaction or series of related transactions.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any superseding
Federal statute, and the rules and regulations promulgated thereunder, all
as
the same shall be in effect at the time. Reference to a particular section
of
the Securities Exchange Act of 1934, as amended, shall include a reference
to
the comparable section, if any, of any such superseding Federal
statute.
“Fee
Expenses” means, with respect to any Registrable Securities included in a
registration, all registration and filing fees with the Commission, all filing
fees of the New York Stock Exchange, Inc., other national securities exchanges
or the National Association of Securities Dealers, Inc., and all filing fees
to
comply with securities or blue sky laws which relate solely to such Registrable
Securities.
“Initiating
Holder” is defined in Section 2.1.
“NASD”
means National Association of Securities Dealers, Inc.
“Person”
means any individual, firm, corporation, partnership, limited liability company
or partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind and shall include any successor (by merger
or otherwise) of such entity.
“Pillsbury”
is defined in Section 2.2(d).
“Purchase
Agreement” is defined in Section 1.
“Registrable
Securities” means (i) any Shares, (ii) any shares of Common Stock issued upon
conversion of the Shares, (iii) any other shares of Common Stock or Voting
Securities beneficially owned by ▇▇▇▇▇▇▇ or any of its Affiliates (whether
owned
on the date hereof or hereafter acquired) and (iv) any securities of the Company
issued or issuable with respect to any of the securities described in clauses
(i), (ii) or (iii) by way of a dividend or stock split or in connection with
a
combination of shares, recapitalization, reclassification, merger,
consolidation, reconstitution or other reorganization or otherwise. As to any
particular Registrable Securities, once issued, such securities shall cease
to
be Registrable Securities when (a) a registration statement with respect to
the
sale of such securities shall have become effective under the Securities Act
and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold as permitted by Rule 144 (or any
successor provision) under the Securities Act, (c) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration of such
distribution under the Securities Act or (d) they shall have ceased to be
outstanding. All references to percentages of Registrable Securities shall
be
calculated pursuant to Section 9.
“Registration
Expenses” means with respect to any registration under Section 2, all Fee
Expenses with respect to Registrable Securities included in such registration,
all reasonable printing, messenger and delivery expenses incurred in such
registration, the reasonable fees and disbursements of counsel for the Company
and of its independent public accountants incurred in such registration,
including the reasonable expenses of “comfort” letters required by or incident
to such performance and compliance, any reasonable fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (excluding
any
underwriting discounts or commissions with respect to the Registrable
Securities) and the reasonable fees and expenses of one counsel to the Selling
Holders incurred in such registration (selected by Selling Holders representing
at least 50% of the Registrable Securities covered by such
registration)
“Requesting
Holder” is defined in Section 2.2.
“Securities
Act” means the Securities Act of 1933, as amended, or any superseding Federal
statute, and the rules and regulations promulgated thereunder, all as the same
shall be in effect at the time. References to a particular section of the
Securities Act of 1933, as amended, shall include a reference to the comparable
section, if any, of any such superseding Federal statute.
“Selling
Holder” is defined in Section 2.1.
“Shares”
is defined in Section 1.
“Third
Party Securities” means any securities included in a registration statement
requested under Section 2.1 or 2.2, other than (i) Registrable Securities,
and
(ii) securities to be sold by the Company for its own account.
“Voting
Securities” means any securities of the Company entitled to vote generally in
the election of directors, or securities convertible into or exercisable or
exchangeable for such securities.
4. Rule
144.
The
Company shall take all actions reasonably necessary to enable holders of
Registrable Securities to sell such securities without registration under the
Securities Act within the limitation of the provisions of (a) Rule 144 under
the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rules or regulations hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
5. Amendments
and Waivers.
This
Agreement may be amended with the consent of the Company and the Company may
take any action herein prohibited, or omit to perform any act herein required
to
be performed by it, only if the Company shall have obtained the written consent
to such amendment, action or omission to act, of the holder or holders of at
least 66-2/3% of the Registrable Securities affected by such amendment, action
or omission to act. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
5, whether or not such Registrable Securities shall have been marked to indicate
such consent. If the Securities Act is amended or new regulations are adopted
thereunder, to permit company registration such that the Company would not
be
able to grant the holders of Registrable Securities the right to register and
resell their Registrable Securities in the manner contemplated under this
Agreement on the date of its execution, then the parties hereto agree to
negotiate in good faith to amend this Agreement to grant such holders of
Registrable Securities substantially equivalent rights to those that were
provided on the date of this Agreement.
6. Nominees
for Beneficial Owners.
In
the
event that any Registrable Securities are held by a nominee for the beneficial
owner thereof, the beneficial owner thereof may, at its election in writing
delivered to the Company, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or holders
of Registrable Securities pursuant to this Agreement or any determination of
any
number or percentage of shares of Registrable Securities held by any holder
or
holders of Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner*s
beneficial ownership of such Registrable Securities.
7. Notices.
All
notices, demands and other communications provided for or permitted hereunder
shall be made in writing and shall be by registered or certified first-class
mail, return receipt requested, telecopier, courier service or personal
delivery:
(i) if
to
▇▇▇▇▇▇▇, addressed to it in the manner set forth in the Purchase Agreement,
or
at such other address as it shall have furnished to the Company in writing
in
the manner set forth herein;
(ii) if
to any
other holder of Registrable Securities, at the address that such holder shall
have furnished to the Company in writing in the manner set forth herein, or,
until any such other holder so furnishes to the Company an address, then to
and
at the address of the last holder of such Registrable Securities who has
furnished an address to the Company; or
(iii) if
to the
Company, addressed to it in the manner set forth in the Purchase Agreement,
or
at such other address as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding in the manner set forth
herein.
All
such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; when delivered by a courier, if
delivered by overnight courier service; three business days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged, if telecopied.
8. Assignment.
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and, with respect to the Company, its respective
successors and permitted assigns and, with respect to ▇▇▇▇▇▇▇, any subsequent
holder of any Registrable Securities, subject to the provisions respecting
the
minimum amount of Registrable Securities required in order to be entitled to
certain rights, or take certain actions, contained herein.
9. Calculation
of Percentage Interests in Registrable Securities.
For
purposes of this Agreement, all references to a percentage of the Registrable
Securities shall be calculated based upon the number of Registrable Securities
outstanding at the time such calculation is made. If there is more than one
class of Registrable Securities, then each reference to a percentage of the
Registrable Securities shall mean a percentage of each class of the Registrable
Securities.
10. No
Inconsistent Agreements.
The
Company will not hereafter enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement. Without limiting the generality of
the
foregoing, the Company will not hereafter enter into any agreement with respect
to its securities which grants, or modify any existing agreement with respect
to
its securities to grant, to the holder of its securities in connection with
an
incidental registration of such securities equal or higher priority to the
rights granted to ▇▇▇▇▇▇▇ under Section 2.
11. Remedies.
Each
holder of Registrable Securities, in addition to being entitled to exercise
all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement without being required
to post bond. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
12. 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 contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of ▇▇▇▇▇▇▇ shall be enforceable
to the fullest extent permitted by law.
13. Entire
Agreement.
This
Agreement, together with the Purchase Agreement (including the exhibits and
schedules thereto), is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties
or
undertakings, other than those set forth or referred to herein and therein.
This
Agreement and the Purchase Agreement (including the exhibits and schedules
thereto) supersede all prior agreements and understandings between the parties
with respect to such subject matter.
14. Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
15. Governing
Law.
This
Agreement has been negotiated, executed and delivered in the State of New York
and shall be governed by and construed in accordance with the laws of the State
of New York, without regard to principles of conflicts of law.
16. 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
an original and all of which taken together shall constitute one and the same
instrument.
[Intentionally
left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective representatives hereunto duly authorized
as of
the date first above written.
SENECA
FOODS CORPORATION
By:
/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: President
▇▇▇▇
▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By:
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Executive
Vice President - U.S. Fixed Income
▇▇▇▇
▇▇▇▇▇▇▇ VARIABLE LIFE
INSURANCE
COMPANY
By:
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Authorized
Signatory