REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT entered into this 20th day
of December, 1995 between SMITHFIELD FOODS, INC., a Delaware corporation
("Company"), and CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation
("Holder").
W I T N E S S E T H:
WHEREAS, the Holder is the owner of 1,094,273 shares of the
Company's issued and outstanding common stock, par value Fifty Cents ($.50) per
share received from the Company as partial consideration for the transfer of
certain shares in John Morrell & Co. ("Common Stock" or "Shares") at the date
hereof;
WHEREAS, in connection with the issuance of such Shares to the
Holder, the Company agreed to provide the Holder with certain rights to require
the Company to register the sale by the Holder of such Shares with the
Securities and Exchange Commission (the "Commission") and applicable state
securities agencies.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
1. Demand Registration Rights.
1.1. On any two (2) separate occasions, upon the written
request of the Holder given on or before December 31, 2000, the Company will
prepare and file, promptly after such request and in no case more than sixty
(60) days after receipt of such request, and thereafter use its best efforts to
cause to become effective a registration statement ("Registration Statement") on
a proper form to be selected by the Company under and complying with the
Securities Act of 1933, as amended (the "Act"), covering such number of Shares
of Common Stock as shall be specified in the Holder's request; provided,
however, that the Company shall not be obligated to register Shares with a
market value of less than Five Million and 00/100 Dollars ($5,000,000.00)
pursuant to any such request, market value to be measured based on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") last
sales price on the day two (2) days prior to the date of such request.
1.2. If the Holder so requests, the offering or distribution
of Shares under this Section 1 shall be pursuant to a firm commitment
underwriting. The managing underwriter shall be a nationally recognized
investment banking firm selected by the Holder, but subject to the approval of
the Company, which approval shall not be unreasonably withheld. The Company will
enter into an underwriting agreement with such managing underwriter containing
representations, warranties and agreements not substantially
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different from those customarily included by an issuer in underwriting
agreements with respect to secondary distribution; provided, however, that the
Holder shall be entitled to negotiate the underwriting discounts and commissions
and other fees of such underwriter payable by the Holder.
1.3. No securities to be sold by the Company or any security
holder of the Company shall be included in any Registration Statement filed
pursuant to this Section 1, unless (i) the offering is pursuant to a firm
commitment underwriting and the managing or principal underwriter shall have
consented to the inclusion of such other securities; and (ii) all the Shares
requested to be included by the Holder shall be so included.
1.4. The Company shall be entitled to postpone the filing of
any Registration Statement otherwise required to be prepared and filed by it
pursuant to this Section 1 if, at the time it receives a request for
registration, (a) (i) the Company would, in accordance with the written advice
of its outside counsel, find it appropriate to disclose in the Prospectus
information not otherwise then required by law to be publicly disclosed and (ii)
in the judgment of the Company's Board of Directors, as such judgment is set
forth in a resolution of the Board of Directors (or the executive committee
thereof), there is a reasonable likelihood that such disclosure, or any other
action to be taken in connection with the Prospectus, would materially and
adversely affect any existing or prospective material business situation,
transaction or negotiation or otherwise materially and adversely affect the
Company, or (b) the Company or any of its Subsidiaries would be required to
prepare any financial statements other than those which it customarily prepares
in the ordinary course of its business, or (c) it would be materially
detrimental to the Company and its shareholders for the Company to immediately
proceed with the filing of a Registration Statement; provided, that the duration
of such delay shall not exceed ninety (90) days; and provided further, that the
Company shall promptly make such filing as soon as the conditions which permit
it to delay such filing no longer exist; and provided further that in the event
of any such deferral, the Holder shall have the right to withdraw its request
for Registration and such withdrawn request shall not be considered one of the
Holder's two permitted requests for registration under Section 1.1 hereof.
1.5. As to each Registration Statement, insofar as the methods
of distribution proposed to be used are not reflected in the last prospectus
(including any amendments or supplements thereto) filed by the Company under the
Act, the Holder will provide the Company with a description of the method or
methods of distribution of Shares from time to time contemplated by the Holder
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and the Company shall file any and all amendments and supplements necessary to
include such description in such Registration Statement. Nothing in this
Agreement, however, shall be construed to require the Company to register any
proposed offering pursuant to "shelf registration" procedures contemplated by
Rule 415 under the Act, or any successor provision.
1.6. As to each Registration Statement, in the event that the
Company believes the last prospectus (including any amendments or supplements
thereto) filed under the Act may contain misleading statements or material
omissions, the Company shall notify the Holder in writing and the Holder hereby
agrees to immediately cease utilizing such prospectus for the sale of Shares,
and the Company agrees, as soon thereafter as may be practicable, to amend or
supplement such prospectus so as to meet the requirements of the Act, and to
notify the Holder of such action.
2. Piggy-Back Registration Rights.
2.1. If at any time prior to December 31, 2000, the Company
shall propose to file a Registration Statement for the purpose of effecting a
primary offering under the Act on Form S-1, S-2 or S-3 or any equivalent general
form for registration of equity securities under the Act with respect to a
public offering of any Company Common Stock, the Company shall, as promptly as
practicable but, in no event later than thirty (30) days prior to the proposed
filing date, give notice of such intention to the Holder and shall include in
such Registration Statement all Shares as the Holder shall request, within ten
(10) days of the giving of such notice, subject to the limitations that the
Company shall not be obligated to register for the Holder fewer than the lesser
of (i) Shares with a market value of less than Five Million and 00/100 Dollars
($5,000,000.00), market value to be measured as of the date of such request, or
(ii) the aggregate number of Shares still held by the Holder, and the inclusion
of such Shares may be conditioned or restricted if, in the good faith opinion of
the managing underwriter (or underwriters) of the securities to be sold (or, in
the absence thereof, of the principal investment banker acting on behalf of the
Company in effecting such sale) for which such Registration Statement is being
filed, such inclusion can reasonably be expected to have a material adverse
impact on the offering of the securities being so registered. If the number of
Shares is so restricted, then no Shares nor any securities of other
securityholders shall be included in the offering unless all securities which
the Company is attempting to sell are included therein, and any reduction
required thereafter shall be made pro rata among the Holder and the other
selling securityholders; provided, however, that such rights of the Holder to
share pro rata
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shall be subject to any prior rights which the Company may have granted to
others before the date of this Agreement.
2.2. The Company may, without the consent of the Holder,
withdraw any Registration Statement filed pursuant to this Section 2 and abandon
any such proposed offering in which the Holder requested to participate. The
Holder may withdraw any or all of the Shares held by the Holder from a
Registration Statement filed or proposed to be filed pursuant to this Section 2
at any time prior to the effectiveness of such Registration Statement.
2.3. The notice from the Company to the Holder under this
Section 2 shall specify whether the Securities to be included in such
registration for a sale by the Company are to be sold through underwriters in a
firm commitment offering. If Shares of the Holder are included in such an
offering, they shall be included on the same terms (including the same
underwriting discount or commission) applicable to the securities of the
Company.
3. Covenants of the Holder.
3.1. Any request for registration made by the Holder shall
specify the number of Shares as to which such request relates, express the
Holder's present intention to offer such Shares for distribution and contain an
undertaking to provide all such information and materials and take all such
actions and execute all such documents as may be required in order to permit the
Company to comply with all applicable requirements of the Commission and to
obtain acceleration of the effective date of the Registration Statement.
3.2. The Holder agrees that in disposing of any Common Stock,
it will comply with all applicable securities laws, including Rules 10b-5, 10b-6
and 10b-7 promulgated under the Securities Exchange Act of 1934, as amended. The
Holder agrees to deliver the current prospectus contained in the Registration
Statement, and such supplements thereto, if any, as may be appropriate, to all
persons as required by the Act, the rules promulgated thereunder, and any
applicable "blue sky" laws and regulations in connection with the disposition of
its Common Stock.
4. Covenants of the Company.
So long as the Company is under an obligation pursuant to the
provisions of Section 1 hereof, the Company shall:
4.1. Prepare and file with the Commission such amend-
ments and supplements to such Registration Statement and the
prospectus forming part of such Registration Statement as may be
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necessary to keep such Registration Statement effective for such period as shall
be necessary to complete the marketing of the Shares included therein, but in no
event for longer than three (3) months after the date the Shares may first be
sold, not including any period during which the Holder is prohibited from
selling any Shares;
4.2. Furnish to the Holder such number of copies of a
prospectus including, without limitation, a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Holder may reasonably request in order to facilitate the public sale or other
disposition of such Shares;
4.3. Use reasonable efforts (i) to register or qualify, not
later than the effective date of any Registration Statement filed pursuant to
this Agreement, the Shares covered by such Registration Statement under the
securities or Blue Sky laws of such jurisdictions within the United States as
the Holder may reasonably request, and (ii) to do any and all other reasonable
acts or things which may be necessary or advisable to enable the Holder to
consummate the public sale or other disposition in such jurisdiction of such
Shares; provided, however, that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or
taxation in any jurisdiction where it is not then so subject;
4.4. Promptly notify the Holder, at any time when a prospectus
relating to the Shares being distributed is required to be delivered under the
Act, of 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 material fact or omits 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 then existing and, at the request of the Holder, prepare as soon
as practicable thereafter, file with the Commission and furnish to the Holder a
reasonable number of copies of a supplement to, or an amendment of, such
prospectus as may be necessary, or make any other appropriate filing with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, which
will be incorporated by reference into the Registration Statement so that, as
thereafter delivered to the purchasers of such Shares, 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 light of the circumstances then existing.
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4.5. Use reasonable efforts to furnish, at the request of the
Holder or any underwriter of any distribution of the Shares, an opinion of legal
counsel to the Company, covering such matters as are typically covered by
opinions of issuer's counsel in underwritten offerings under the Act; and
4.6. Enter into an agreement with the underwriters for such
offering in which the Company shall provide indemnities similar to those
described in Section 6 hereof to the underwriters and in which the Company shall
make the usual warranties and representations made by issuers of equity
securities to underwriters.
5. Costs and Expenses.
5.1. With respect to the initial demand registration under
Section 1.1 hereof, the Company shall bear all Registration Costs (as defined
below) and Holder shall bear all Offering Costs (as defined below).
5.2. With respect to the second demand registration under
Section 1.1 hereof, Holder shall bear all reasonable Registration Costs not in
excess of $100,000.00 and all Offering Costs. The balance of the Registration
Costs, if any, shall be paid by the Company.
5.3. For purposes hereof, (a) "Registration Costs" means the
entire cost and expense of any registration made pursuant to this Agreement,
including, without limitation, all registration and filing fees, printing
expenses, the fees and expenses of the Company's counsel and its independent
accountants and all other out-of-pocket expenses incident to the preparation,
printing and filing under the Act of the Registration Statement and all
amendments and supplements thereto, the cost of furnishing copies of each
preliminary prospectus, each final prospectus and each amendment or supplement
thereto to underwriters, brokers and dealers and other purchasers of the
securities so registered, and the costs and expenses incurred in connection with
the qualification of the securities so registered under "blue sky" or other
state securities laws, and (b) "Offering Costs" means the fees and expenses of
counsel and accountants of the Holder, all transfer taxes, underwriting
discounts and commissions attributable to Shares registered at the request of
the Holder, and in any registration made pursuant to Section 2 hereof, all
filing fees attributable to Shares registered at the request of the Holder.
5.3. All such fees and expenses payable by Holder shall,
if appropriate, be prorated among all selling securityholders.
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6. Indemnification.
6.1. In connection with any registration effected pursuant to
this Agreement, the Company will indemnify the Holder, its officers, directors
and each underwriter of Common Stock as well as any person who controls the
Holder or such underwriters against all claims, losses, damages, liabilities and
expenses resulting from any untrue statement or alleged untrue statement of a
material fact contained in a prospectus or in any related Registration
Statement, notification or similar filing under the securities laws of any
jurisdiction or from 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, except insofar as the same may have been based upon
information furnished in writing to the Company by the Holder or such
underwriter expressly for use therein and used in accordance with such writing.
6.2. The Holder, by requesting any such registration, agrees
to furnish to the Company such information concerning it as may be requested by
the Company and which, in the reasonable opinion of counsel for the Company, is
necessary or required by then applicable securities laws and the rules and
regulations thereunder in connection with any Registration or qualification of
the Common Stock and to indemnify the Company, its officers and directors and
each underwriter (and any persons who control the Company or the underwriter) of
the Shares, if any, against all claims, losses, damages, liabilities and
expenses resulting from the utilization of such information furnished to the
Company expressly for use therein and from any omission or alleged omission
therefrom.
6.3. If any action is brought or any claim is made against any
party entitled to be indemnified pursuant to this Section 6 in respect of which
indemnity may be sought against the indemnitor pursuant to this Section 6, such
party shall promptly notify the indemnitor in writing of the institution of such
action or the making of such claim and the indemnitor shall assume the defense
of such action or claim, including the employment of counsel and payment of
expenses. Such indemnified party shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such party unless the employment of such counsel shall have been
authorized in writing by the indemnitor in connection with the defense of such
action or claim or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to the indemnitor (in which case the
indemnitor shall not have the right to direct any different or additional
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defense of such action or claim on behalf of the indemnified party or parties),
in any of which events such fees and expenses of not more than one additional
counsel for the indemnified parties shall be borne by the indemnitor. Except as
expressly provided above, if the indemnitor shall not previously have assumed
the defense of any such action or claim, at such time as the indemnitor does
assume the defense of such action or claim, the indemnitor shall thereafter be
liable to any person indemnified pursuant to this Agreement for any legal or
other expenses subsequently incurred by such person in investigating, preparing
or defending against such action or claim. Anything in this Section 6 to the
contrary notwithstanding, the indemnitor shall not be liable for any settlement
of any such claim or action effected without its written consent.
6.4. If the indemnification provided for in this Agreement is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages, liabilities or actions referred to therein, as
determined by a court of competent jurisdiction, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as is appropriate to reflect
the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or actions as well
as any other relevant equitable considerations. The relevant fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
indemnifying party, on the one hand, or the indemnified party on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holder agree that it would not be just and equitable if contributions
pursuant to this Section 6 were determined by pro rata allocation or by any
other method of allocation which would not take account of the equitable
considerations referred to in this Section 6. The amount paid or payable by an
indemnifying party as a result of the losses, claims, damages, liabilities or
actions in respect thereof referred to in this Section 6 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who is not
also guilty of such fraudulent misrepresentation.
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7. Miscellaneous.
7.1. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be in writing
and shall be deemed given only if (i) delivered personally or by courier or (ii)
sent by registered or certified mail, postage prepaid, or (iii) sent by
confirmed facsimile with the original to follow by first class mail, postage
prepaid, as follows:
If to the Company: Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, Ohio 45202
Attention: General Counsel
Facsimile No: (513) 784-6691
With a copy to: Mr. Paul V. Muething
Keating, Muething & Klekamp
1800 Provident Tower
One East Fourth Street
Cincinnati, OH 45202
Facsimile No: (513) 579-6956
If to the Holder: Smithfield Foods, Inc.
501 North Church Street
Smithfield, Virginia 23431
Attention: Joseph W. Luter III
Facsimile
No: (804) 357-1331
With a copy to: Mr. Peter M. Sommerhauser
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, WI 53202
Facsimile No: (414) 273-5198
Mr. Sam Young Garrett
McGuire, Woods, Battle & Booth, LLP
One James Center
901 East Cary Street
Richmond, VA 23219
Facsimile: (804) 775-7456
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the date so delivered, mailed or received by facsimile transmission.
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7.2. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective permitted successors and
assigns.
7.3. This Agreement shall be governed by and construed
under the laws of the State of Virginia.
7.4. The provisions of this Agreement: (a) apply only to
Shares of Common Stock received as a result of the transaction described in this
Agreement; and (b) except as provided in Paragraphs 7.5 and 7.6, below, are (i)
personal to the Holder and shall not be assignable in whole or in part, and (ii)
shall terminate as to any shares of Common Stock sold by the Holder.
7.5. Holder (or any successor to its rights hereunder) may
transfer all or any portion of the Shares to one or more Affiliates and such
Affiliate or Affiliates shall be entitled to all of the benefits of this
Agreement subject to the following conditions:
(a) So long as any of the Shares shall be registered
to Holder, Holder shall be entitled to exercise all of the rights of
the Holder hereunder (the "Rights") on behalf of itself and each of its
Affiliates; provided, however, upon written notice to Company, Holder
may transfer the Rights to any Affiliate who owns Shares and in such
event such Affiliate shall act as the substitute Holder for purpose of
this Agreement and thereafter such substitute Holder shall hold and
exercise all Rights on behalf of itself, Holder and each of the
Affiliates.
(b) The Company shall only be required to give notice
to and to accept direction from the Holder or substitute Holder as set
forth above, and such direction shall be binding on Holder and each of
its Affiliates.
For purposes of Paragraphs 7.5 and 7.6 hereof, "Holder" means Holder and its
successors and assigns, and "Affiliate" means an Affiliate (as defined in the
Purchase Agreement) of Chiquita Brands International, Inc.
7.6. Subject to the limitations set forth below, Holder (or
any successor to its rights hereunder) may also transfer some or all of the
Rights in connection with a sale of the Shares, or a portion thereof, provided
that the following conditions shall have been satisfied:
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(a) If Holder desires to transfer any Shares (the
"Subject Shares") together with any of the Rights (the "Subject
Interest") to a party other than an Affiliate, Holder shall notify the
Company ("Holder's Notice") in writing that Holder desires to transfer
the Subject Interest, which notice shall set forth the number of Shares
desired to be transferred and specify which Rights are to be
transferred.
(b) During the 30-day period following the Company's
receipt of Holder's Notice (the "Notice Period"), Holder will not
transfer the Subject Interest to an entity (a "Transferee") that has
not been approved by the Company, which approval shall not be
unreasonably withheld. The Company shall give Holder written notice of
its approval or disapproval of any proposed Transferee (the "Transfer
Notice") within 2 business days after receipt of written notice from
Holder of the identity of any proposed Transferee (a "Transferee
Notice"). If the Company does not give a Transfer Notice within 2
business days, the proposed Transferee identified in the Transferee
Notice shall be conclusively deemed to have been approved by the
Company. There shall be no limit on the number of Notices which Holder
may give during the Notice Period. A Notice may identify more than one
potential Transferee.
(c) Following the Notice Period, Holder shall be
entitled to transfer the Subject Interest to any entity, including any
entity previously disapproved by the Company; provided, that if the
Subject Interest has not been transferred by Holder within one year
after the Notice Period, the provisions of Subparagraph (a) and (b)
above will once again apply to any proposed transfer of the Subject
Interest.
(d) Subject to the provisions of Subparagraph (b)
above, and the restrictions set forth in this subparagraph, Holder
shall have the right to transfer to any Transferee all of the Rights
accorded by this Agreement with respect to any Subject Shares while
retaining to Holder all of the Rights accorded by this Agreement with
respect to any Shares not included in the Subject Shares (the
"Remaining Shares"). The Rights appurtenant to any Remaining Shares
shall continue to be subject to the provisions of Subparagraph (b),
above. Holder shall have the right to determine the extent of the
Rights to be transferred to any Transferee, including whether any
transfer shall entitle the Transferee to one, two or no demand
registrations under Section 1.1 hereof and, if the entitlement is one
demand registration, whether it is governed by Section 5.1 or Section
5.2; provided that under no circumstances shall (i) the Company be
required to effectuate more
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than a total of two demand registrations pursuant to Section 1.1 of
this Agreement; and (ii) no more than two (2) parties may hold
piggyback registration rights granted under Paragraph 2, above.
(e) The provisions of this Section 7.6 shall only
apply to the transfer of the Subject Shares with appurtenant Rights and
shall not be construed to limit or restrict Holder's right to sell or
otherwise transfer Shares without Rights or in any way require the
Company's approval of thereof.
7.7. If the Common Stock of the Company covered by this
Agreement is converted into any other security of the Company or any other
corporation, the terms of this Agreement shall apply with full force and effect
to any such other security and the obligations of the Company to effect
registration shall include such other filings, qualifications, notices and
similar acts as may be necessary to enable the Holder to realize the benefits of
registration provided by this Agreement.
7.8. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
WITNESSES: SMITHFIELD FOODS, INC.
______________________________ By: __________________________
Robert A. Sharpe II,
Vice President
CHIQUITA BRANDS INTERNATIONAL,
INC.
______________________________ By: __________________________
Robert W. Olson,
Vice President