EXHIBIT 4.3
PINNACLE FOODS HOLDING CORPORATION
$200,000,000
8 1/4% SENIOR SUBORDINATED NOTES DUE 2013
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
November 25, 2003
J.P. MORGAN SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
c/o J.P. Morgan Securities Inc.
270 Park Avenue, 5th floor
New York, New York 10017
Ladies and Gentlemen:
Pinnacle Foods Holding Corporation, a Delaware corporation ("the
Company") proposes to issue and sell to J.P. Morgan Securities Inc. ("JPMorgan")
and Deutsche Bank Securities Inc. (together with JPMorgan, the "Initial
Purchasers"), upon the terms and subject to the conditions set forth in a
purchase agreement dated November 20, 2003, and the joinder thereto dated
November 25, 2003 (together, the "Purchase Agreement"), $200,000,000 principal
amount of the Company's 8 1/4% Senior Subordinated Notes due 2013 (the "Notes")
to be guaranteed on an unsecured senior subordinated basis by each of the
subsidiaries of the Company listed on Schedule I hereto (the "Note Guarantors").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and the Note Guarantors agree with
the Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers and the Market-Maker (as defined herein)) of the Notes and the
Exchange Notes (as defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. Unless, because of any change in law
or applicable interpretations thereof by the Commission's staff, the Company and
the Note Guarantors determine in good faith after consultation with counsel that
they are not permitted to effect the Registered Exchange Offer (as defined
herein), the Company and the Note Guarantors shall (i) prepare and, not later
than 270 days following the date of original issuance of the Notes (the "Issue
Date"), file with the Commission a registration
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statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act with respect to a proposed offer to the Holders of the
Notes (the "Registered Exchange Offer") to issue and deliver to such Holders, in
exchange for the Notes, a like aggregate principal amount of debt securities of
the Company (the "Exchange Notes") that are identical in all material respects
to the Notes, except for the transfer restrictions relating to the Notes, (ii)
use reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Securities Act no later than 330 days after the
Issue Date and the Registered Exchange Offer to be consummated no later than 360
days after the Issue Date and (iii) keep the Registered Exchange Offer open for
not less than 20 business days (or longer, if required by applicable law) after
the date on which notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer Registration Period"). The
Exchange Notes will be issued under the Indenture or an indenture (the "Exchange
Notes Indenture") among the Company, the Note Guarantors and the Trustee or such
other bank or trust company that is reasonably satisfactory to the Initial
Purchasers, as trustee (the "Exchange Notes Trustee"), such indenture to be
identical in all material respects to the Indenture, except for the transfer
restrictions relating to the Notes (as described above). All references in this
Agreement to "prospectus" shall, except where the context otherwise requires,
include any prospectus (or amendment or supplement thereto) filed with the
Commission pursuant to Section 6 of this Agreement.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder (a) is not an
affiliate (within the meaning of Rule 405 under the Securities Act) of the
Company or an Exchanging Dealer (as defined herein) not complying with the
requirements of the next sentence, (b) is not an Initial Purchaser holding Notes
that have, or that are reasonably likely to have, the status of an unsold
allotment in an initial distribution, (c) acquires the Exchange Notes in the
ordinary course of such Holder's business, (d) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Notes and (e) if such Holder is not an Exchanging Dealer (as defined
below), it is not engaged in, and does not intend to engage in, a distribution
of the Exchange Notes) and to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the several states of
the United States. The Company, the Note Guarantors, the Initial Purchasers and
each Exchanging Dealer acknowledge that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, each Holder 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 Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section (if any) and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any
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such Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer.
In connection with the Registered Exchange Offer, the Company shall:
(a) 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;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancelation all Notes so accepted for
exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes
equal in principal amount to the Notes of such Holder so accepted for
exchange.
The Company and the Note Guarantors shall use reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons (including Exchanging Dealers) subject to
the prospectus delivery requirements of the Securities Act for 180 days after
the consummation of the Registered Exchange Offer (such 180 days, the
"Applicable Period").
The Indenture or the Exchange Notes Indenture, as the case may be,
shall provide that the Notes and the Exchange Notes shall vote and consent
together on all
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matters as one class and that neither the Notes nor the Exchange Notes will have
the right to vote or consent as a separate class on any matter; provided that,
whenever the consent or approval of Holders of a specified percentage of Notes
and Exchange Notes is required, any Notes or Exchange Notes owned directly or
indirectly by the Company or any of its affiliates (other than JPMorgan, its
subsidiaries or its broker-dealer affiliates) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount; provided further that, if the Company shall issue
any additional Notes under the Indenture prior to consummation of the Registered
Exchange Offer or the effectiveness of any Shelf Registration Statement, such
additional Notes and the Notes to which this Agreement relates shall be treated
together as one class for purposes of determining whether the consent or
approval of Holders of a specified percentage of Notes has been obtained.
Interest on each Exchange Note issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Notes surrendered in exchange therefor or, if no interest has
been paid on the Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Note Guarantors in writing (which
may be contained in the applicable letter of transmittal) that at the time of
the consummation of the Registered Exchange Offer (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an affiliate (within the
meaning of Rule 405 under the Securities Act) of the Company or, if it is such
an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and (iv) if
such Holder is a broker-dealer, that it will deliver a prospectus in connection
with any resale of such Exchange Notes during the Applicable Period.
Notwithstanding any other provisions hereof, the Company and the
Note Guarantors will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations of the Commission thereunder, (ii) any Exchange Offer
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 Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
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2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company and the
Note Guarantors determine in good faith after consultation with counsel that
they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 1 hereof, or (ii) any Notes validly tendered pursuant to the
Registered Exchange Offer are not exchanged for Exchange Notes within 360 days
after the Issue Date, or (iii) the Initial Purchasers so request with respect to
Notes not eligible to be exchanged for Exchange Notes in the Registered Exchange
Offer and held by them following the consummation of the Registered Exchange
Offer, or (iv) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer (other than because such Holder has
an understanding or arrangement with any person to participate in the
distribution of the Exchange Notes), (v) any Holder that participates in the
Registered Exchange Offer notifies the Company in writing within 30 days
following the consummation of the Registered Exchange Offer that such Holder may
not resell the Exchange Notes acquired by it in the Registered Exchange Offer to
the public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not legally available for such resales
by such Holder or (vi) the Company so elects, then the following provisions
shall apply:
(a) The Company and the Note Guarantors shall use reasonable best
efforts to file as promptly as practicable (but in no event more than 60
days after so required or requested pursuant to this Section 2; provided
that in the case of any filing in response to clause (i), (iii) or (iv) of
the preceding paragraph, the Company and the Note Guarantors shall not be
required to make any such filing earlier than 270 days following the Issue
Date (the date of such filing, the "Shelf Filing Date")) with the
Commission, and thereafter shall use reasonable best efforts to cause to
be declared effective on or prior to 90 days after the Shelf Filing Date
(but, in the case of any filing in response to clause (i), (iii), (iv) or
(vi) of the preceding paragraph, in no event earlier than the 360th day
after the Issue Date), a shelf registration statement on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer-Restricted Notes (as defined below) by the Holders thereof from
time to time in accordance with the methods of distribution set forth in
such registration statement (hereafter, a "Shelf Registration Statement"
and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) The Company and the Note Guarantors shall use reasonable best
efforts to keep the Shelf Registration Statement continuously effective in
order to permit the prospectus forming part thereof to be used by Holders
of Transfer-Restricted Notes for a period ending on the earlier of (i) two
years from the Issue Date or such shorter period that will terminate when
all the Transfer-Restricted Notes covered by the Shelf Registration
Statement have been sold pursuant thereto and (ii) the date on which the
Notes become eligible for resale without volume restrictions pursuant to
Rule 144 under the Securities Act
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(in any such case, such period being called the "Shelf Registration
Period"). The Company and the Note Guarantors shall be deemed not to have
used reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily take any
action that would result in Holders of Transfer-Restricted Notes covered
thereby not being able to offer and sell such Transfer-Restricted Notes
during that period, unless (A) such action is required by applicable law
or (B) such action was permitted by Section 2(c).
(c) Notwithstanding the provisions of Section 2(b) (but subject to
the provisions of Section 3(b)), the Company and the Note Guarantors may
for valid business reasons, including without limitation, a potential
acquisition, divestiture of assets or other material corporate
transaction, issue a notice that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable
for offers and sales of Transfer-Restricted Notes and may issue any notice
suspending use of the Shelf Registration Statement required under
applicable securities laws to be issued. The provisions of this Section
2(c) shall also be applicable to the Exchange Offer Registration Statement
during the Applicable Period; provided that the Applicable Period shall be
extended for the number of days (which shall not exceed 60) that the use
of the Shelf Registration Statement is suspended.
(d) Notwithstanding any other provisions hereof, the Company and the
Note Guarantors shall ensure that (i) any Shelf Registration Statement and
any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder, (ii) any
Shelf Registration Statement and any amendment thereto (in either case,
other than with respect to information included therein in reliance upon
or in conformity with written information furnished to the Company by or
on behalf of any Holder specifically for use therein (the "Holders'
Information")) does not 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 Shelf Registration Statement, and any supplement to
such prospectus (in either case, other than with respect to Holders'
Information), 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 the light of the circumstances under which they were made, not
misleading.
3. Additional Interest. (a) The parties hereto agree that the
Holders of Transfer-Restricted Notes will suffer damages if the Company and the
Note Guarantors fail to fulfill their obligations under Section 1 or Section 2,
as applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Registration Statement is not filed
with the Commission on or prior to the date specified in this Agreement, (ii)
the Exchange Offer Registration Statement or the Shelf
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Registration Statement, as the case may be, is not declared effective on or
prior to the date specified in this Agreement, (iii) the Registered Exchange
Offer is not consummated on or prior to 360 days after the Issue Date (other
than in the event the Company is requested or required or elected to file a
Shelf Registration Statement) or (iv) the Shelf Registration Statement is filed
and declared effective on or prior to the date specified in this Agreement but
shall thereafter cease to be effective (at any time that the Company and the
Note Guarantors are obligated to maintain the effectiveness thereof) without
being succeeded within 60 days by an additional Registration Statement or a
post-effective amendment to the Shelf Registration Statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the interest rate on the Transfer-Restricted Notes will
be increased by 1.00% per annum (the amount paid as a result of such increase,
"additional interest"), until (i) the applicable Registration Statement is
filed, (ii) the Exchange Offer Registration Statement is declared effective and
the Registered Exchange Offer is consummated, (iii) the Shelf Registration
Statement is declared effective or (iv) the Shelf Registration Statement again
becomes effective, an additional Registration Statement becomes effective or a
post-effective amendment to the Shelf Registration Statement becomes effective,
as the case may be; provided that that the Company shall not be required to pay
additional interest for more than one Registration Default at any given time.
Following the cure of all Registration Defaults, the accrual of additional
interest will cease. As used herein, the term "Transfer-Restricted Notes" means
(i) each Note until the date on which such Note has been exchanged for a freely
transferable Exchange Note in the Registered Exchange Offer (it being understood
that the requirement that an Exchanging Dealer deliver a prospectus in
connection with sales of Exchange Notes acquired in the Registered Exchange
Offer shall not mean that the Exchange Note is not freely transferable for
purposes of this Section 3), (ii) each Note until the date on which it has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) each Note until the date on which
it is distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company shall not be required
to pay additional interest to a Holder of Transfer-Restricted Notes if such
Holder failed to comply with its obligations to make the representations set
forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(o).
(b) Notwithstanding the foregoing provisions of Section 3(a), the
Company and the Note Guarantors may for valid business reasons, including
without limitation, a potential acquisition, divestiture of assets or
other material corporate transaction, issue a notice that the Shelf
Registration Statement is no longer effective or the prospectus included
therein is no longer usable for offers and sales of Transfer-Restricted
Notes and may issue any notice suspending use of the Shelf Registration
Statement required under applicable securities laws to be issued and, in
the event that the aggregate number of days in any consecutive
twelve-month period for which all such notices are issued and effective
exceeds
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60 days in the aggregate, then the interest rate on the
Transfer-Restricted Notes covered by the Shelf Registration Statement will
be increased by 1.00% per annum (the amount paid as a result of such
increase, "additional interest"). Upon the Company and the Note Guarantors
declaring that the Shelf Registration Statement is useable after the
period of time described in the preceding sentence, accrual of additional
interest shall cease; provided, however, that if after any such cessation
of the accrual of additional interest the Shelf Registration Statement
again ceases to be useable beyond the period permitted above, additional
interest will again accrue pursuant to the foregoing provisions.
(c) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every
Registration Default. The Company and the Note Guarantors shall pay the
additional interest due on the Transfer-Restricted Notes by depositing
with the Paying Agent (which may not be the Company for these purposes),
in trust, for the benefit of the Holders thereof, prior to 10:00 a.m., New
York City time, on the next interest payment date specified by the
Indenture and the Notes, sums sufficient to pay the additional interest
then due. The additional interest due shall be payable on each interest
payment date specified by the Indenture and the Notes to the record holder
entitled to receive the interest payment to be made on such date. Each
obligation to pay additional interest shall be deemed to accrue from and
including the date of the applicable Registration Default.
(d) The parties hereto agree that the additional interest provided
for in this Section 3 constitute a reasonable estimate of and are intended
to constitute the sole damages that will be suffered by Holders of
Transfer-Restricted Notes by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be
filed, (ii) the Shelf Registration Statement to remain effective or (iii)
the Exchange Offer Registration Statement to be declared effective and the
Registered Exchange Offer to be consummated, in each case to the extent
required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchasers, prior
to the filing thereof with the Commission, a copy of the Exchange Offer
Registration Statement and each amendment thereof and each supplement, if
any, to the prospectus included therein and shall use reasonable best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers may reasonably
propose, (ii) include information substantially as set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section (if any) and in
Annex C hereto in the "Plan of Distribution" section of the prospectus
forming
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a part of the Exchange Offer Registration Statement, and include
information substantially as set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer and (iii)
if requested in writing by any Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise the Initial Purchasers, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(ii) through (v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes or the
Exchange Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and
do not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) The Company and the Note Guarantors will make every reasonable
effort to obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer-Restricted
Notes included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules
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and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer-Restricted Notes included within the
coverage of 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 such prospectus or any amendment or supplement thereto by each
of the Holders of Transfer-Restricted Notes in connection with the offer
and sale of the Transfer-Restricted Notes covered by such prospectus or
any amendment or supplement thereto.
(f) The Company will furnish to the Initial Purchasers, each
Exchanging Dealer who so requests in writing, and to any other Holder who
so requests in writing, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and, if the Initial
Purchasers or Exchanging Dealer or any such Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to the
Initial Purchasers, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement
and any amendment or supplement thereto as the Initial Purchasers, such
Exchanging Dealer or other persons may reasonably request in writing; and
the Company and the Note Guarantors consent to the use of such prospectus
or any amendment or supplement thereto by the Initial Purchasers, such
Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Note Guarantors will use reasonable best efforts to
register or qualify, or cooperate with the Holders of Notes or Exchange
Notes included therein and their respective counsel in connection with the
registration or qualification of, such Notes or Exchange Notes for offer
and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Notes or Exchange Notes covered by such Registration
Statement; provided that the Company and the Note Guarantors will not be
required to qualify generally to do business in any jurisdiction where
they are not
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then so qualified or to take any action which would subject them to
general service of process or to taxation in any such jurisdiction where
they are not then so subject.
(i) The Company and the Note Guarantors will cooperate with the
Holders of Notes or Exchange Notes to facilitate the timely preparation
and delivery of certificates representing Notes or Exchange Notes to be
sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the
Holders thereof may request in writing prior to sales of Notes or Exchange
Notes pursuant to such Registration Statement.
(j) If any event contemplated by Sections 4(b)(ii) through (v)
occurs during the period for which the Company and the Note Guarantors are
required to maintain an effective Registration Statement, the Company and
the Note Guarantors will promptly prepare and file with the Commission a
post-effective amendment to the Registration Statement or a supplement to
the related prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Notes or Exchange Notes from a
Holder, the prospectus will 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 the light of the circumstances under which they
were made, not misleading.
(k) If any event contemplated by Section 2(c) or 3(b) occurs during
the period for which the Company and the Note Guarantors are required to
maintain an effective Registration Statement, the Company and the Note
Guarantors will, to the extent required after the end of the applicable
periods referred to in Sections 2(c) and 3(b), promptly prepare and file
with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Notes or Exchange Notes from a Holder, the prospectus will 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 the light of the
circumstances under which they were made, not misleading.
(l) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Notes and the
Exchange Notes, as the case may be, and provide the applicable trustee
with certificates for the Notes or the Exchange Notes, as the case may be,
in a form eligible for deposit with The Depository Trust Company.
(m) The Company and the Note Guarantors will comply with all
applicable rules and regulations of the Commission and the Company and the
Note Guarantors will make generally available to their security holders as
soon as practicable after the effective date of the applicable
Registration Statement an earning statement of the Company satisfying the
provisions of Section 11(a) of
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the Securities Act; provided that in no event shall such earning statement
be delivered later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the applicable Registration Statement, which statement shall cover such
12-month period.
(n) The Company and the Note Guarantors will cause the Indenture or
the Exchange Notes Indenture, as the case may be, to be qualified under
the Trust Indenture Act as required by applicable law in a timely manner.
(o) The Company may require each Holder of Transfer-Restricted Notes
to be registered pursuant to any Shelf Registration Statement to furnish
to the Company such information concerning the Holder and the distribution
of such Transfer-Restricted Notes as the Company may from time to time
reasonably require for inclusion in such Shelf Registration Statement, and
the Company may exclude from such registration the Transfer-Restricted
Notes of any Holder that fails to furnish such information within a
reasonable time after receiving such request. Each Holder of
Transfer-Restricted Notes as to which a Shelf Registration Statement is
being effected, by its participation in the Shelf Registration Statement,
shall be deemed to agree to furnish the Company and the Note Guarantors
all information concerning such Holder required to be described in order
to make the information previously furnished by such Holder to the Company
and the Note Guarantors not materially misleading.
(p) In the case of (i) a Shelf Registration Statement, each Holder
of Transfer-Restricted Notes to be registered pursuant thereto agrees by
acquisition of such Transfer-Restricted Notes that, and (ii) the Exchange
Offer Registration Statement during the Applicable Period only, each
Holder of Exchange Notes subject to the prospectus delivery requirements
of the Securities Act agrees that, upon receipt of any notice from the
Company pursuant to Sections 2(c), 3(b) or 4(b)(ii) through (v), such
Holder will discontinue disposition of such Transfer-Restricted Notes or
Exchange Notes, as applicable, until such Holder's receipt of copies of
the supplemental or amended prospectus contemplated by Section 4(j) or
4(k), as the case may be, or until advised in writing by the Company that
the use of the applicable prospectus may be resumed (the "Advice"). If the
Company shall give any notice under Section 2(c), 3(b) or 4(b)(ii) through
(v) during the period that the Company is required to maintain an
effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such
period from and including the date of the giving of such notice to and
including the date when each seller of Transfer-Restricted Notes or
Exchange Notes, as applicable, covered by such Registration Statement
shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) or 4(k), as the
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case may be, (if an amended or supplemental prospectus is required) or (y)
the Advice (if no amended or supplemental prospectus is required).
(q) In the case of a Shelf Registration Statement, the Company and
the Note Guarantors shall enter into such customary agreements (including,
if requested by Holders of a majority in aggregate principal amount of the
Notes and Exchange Notes (the "Majority Holders"), an underwriting
agreement in customary form) and take all such other action, if any, as
Holders of a majority in aggregate principal amount of the Notes and
Exchange Notes covered by the Shelf Registration Statement or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Notes or Exchange Notes pursuant to such Shelf Registration
Statement. Notwithstanding anything to the contrary contained in this
Agreement, the Company and the Note Guarantors shall not be required to
engage in more than one underwritten offering pursuant to this Agreement.
(r) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount of the Notes and Exchange Notes covered by the
Shelf Registration Statement and any underwriter participating in any
disposition of Notes or Exchange Notes pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and (ii) use
reasonable best efforts to have its officers, directors, employees,
accountants and counsel supply all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter
(an "Inspector") in connection with such Shelf Registration Statement.
(s) In the case of a Shelf Registration Statement, the Company
shall, if requested by Holders of a majority in aggregate principal amount
of the Notes and Exchange Notes covered by the Shelf Registration
Statement, their Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement, use reasonable best
efforts to cause (i) its counsel to deliver an opinion relating to the
Shelf Registration Statement and the Notes or Exchange Notes, as
applicable, in customary form, (ii) its officers to execute and deliver
all customary documents and certificates requested by Holders of a
majority in aggregate principal amount of the Notes and Exchange Notes
being sold, its Special Counsel or the managing underwriters (if any) and
(iii) its independent public accountants to provide a comfort letter or
letters in customary form, subject to receipt of appropriate documentation
as contemplated, and only if permitted, by Statement of Auditing Standards
No. 72.
14
5. Registration Expenses. The Company and the Note Guarantors will
jointly and severally bear all expenses incurred in connection with the
performance of their obligations under Sections 1, 2, 3 and 4 and the Company
will reimburse the Initial Purchasers or the Holders, as applicable, for the
reasonable fees and disbursements of one firm of attorneys (in addition to any
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Notes and the Exchange Notes covered by each Registration Statement (the
"Special Counsel") acting for the Initial Purchasers or Holders in connection
therewith. The Company and the Note Guarantors are not required to pay any
commissions or concessions of any broker-dealers.
6. Market-Making. (a) For so long as any of the Notes or Exchange
Notes are outstanding and JPMorgan (in such capacity, the "Market-Maker") or any
of its affiliates (as defined in the rules and regulations of the Commission)
owns any equity securities of the Company, the Note Guarantors or any of their
affiliates and proposes to make a market in the Notes or Exchange Notes as part
of its business in the ordinary course, the following provisions shall apply for
the sole benefit of the Market-Maker:
(i) The Company and the Note Guarantors shall (A) on the date
that the Exchange Offer Registration Statement is filed with the
Commission, file a registration statement (the "Market-Making
Registration Statement") (which may be the Exchange Offer
Registration Statement or the Shelf Registration Statement if
permitted by the rules and regulations of the Commission) and use
commercially reasonable efforts to cause such Market-Making
Registration Statement to be declared effective by the Commission on
or prior to the consummation of the Exchange Offer, (B) periodically
amend such Market-Making Registration Statement so that the
information contained therein complies with the requirements of
Section 10(a) under the Securities Act, (C) if reasonably requested
in writing by the Market-Maker, within 45 days following the end of
each of the Company's fiscal quarters (other than the fourth
quarter), file a supplement to the prospectus contained in the
Market-Making Registration Statement that sets forth the financial
results of the Company for such quarter, (D) amend the Market-Making
Registration Statement or amend or supplement the related prospectus
when necessary to reflect any material changes in the information
provided therein and (E) amend the Market-Making Registration
Statement when required to do so in order to comply with Section
10(a)(3) of the Securities Act; provided, however, that (1) prior to
filing the Market-Making Registration Statement, any amendment
thereto or any amendment or supplement to the related prospectus
(other than a supplement filed pursuant to clause (C) of this
paragraph unless the Market-Maker reasonably requests), the Company
will furnish to the Market-Maker copies of all such documents
proposed to be filed, which documents will be subject to the review
of the Market-Maker and its
15
counsel, (2) the Company and the Note Guarantors will not file the
Market-Making Registration Statement, any amendment thereto or any
amendment or supplement to the related prospectus (other than a
supplement filed pursuant to clause (C) of this paragraph unless the
Market-Maker reasonably requests) to which the Market-Maker and its
counsel shall reasonably object unless the Company and the Note
Guarantors are advised by counsel that such Market-Making
Registration Statement, amendment or supplement is required to be
filed and (3) the Company will provide the Market-Maker and its
counsel with copies of the Market-Making Registration Statement and
each amendment and supplement filed.
(ii) The Company shall notify the Market-Maker and, if
requested by the Market-Maker, confirm such advice in writing, (A)
when any post-effective amendment to the Market-Making Registration
Statement or any amendment or supplement to the related prospectus
has been filed, and, with respect to any post-effective amendment,
when the same has become effective, (B) of any request by the
Commission for any post-effective amendment to the Market-Making
Registration Statement, any supplement or amendment to the related
prospectus or for additional information, (C) the issuance by the
Commission of any stop order suspending the effectiveness of the
Market-Making Registration Statement or the initiation of any
proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Notes or Exchange Notes for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose and
(E) of the happening of any event that makes any statement made in
the Market-Making Registration Statement, the related prospectus or
any amendment or supplement thereto untrue or that requires the
making of any changes in the Market-Making Registration Statement,
such prospectus or any amendment or supplement thereto, in order to
make the statements therein not misleading.
(iii) If any event contemplated by Sections 6(a)(ii)(B)
through (E) occurs during the period for which the Company and the
Note Guarantors are required to maintain an effective Market-Making
Registration Statement, the Company and the Note Guarantors shall
promptly prepare and file with the Commission a post-effective
amendment to the Market-Making Registration Statement or an
amendment or supplement to the related prospectus or file any other
required document so that the prospectus will 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 the light of
the circumstances under which they were made, not misleading.
16
(iv) In the event of the issuance of any stop order suspending
the effectiveness of the Market-Making Registration Statement or of
any order suspending the qualification of the Notes or Exchange
Notes for sale in any jurisdiction, the Company and the Note
Guarantors shall use promptly reasonable best efforts to obtain its
withdrawal.
(v) The Company shall furnish to the Market-Maker, without
charge, (i) at least one conformed copy of the Market-Making
Registration Statement and any post-effective amendment thereto and
(ii) as many copies of the related prospectus and any amendment or
supplement thereto as the Market-Maker may reasonably request.
(vi) The Company and the Note Guarantors shall consent to the
use of the prospectus contained in the Market-Making Registration
Statement or any amendment or supplement thereto by the Market-Maker
in connection with its market making activities.
(vii) For so long as the Notes or Exchange Notes shall be
outstanding, the Company shall furnish to the Market-Maker (A) as
soon as practicable after the end of each of the Company's fiscal
years, the number of copies reasonably requested by the Market-Maker
of the Company's annual report for such year, (B) as soon as
available, the number of copies reasonably requested by the
Market-Maker of each report (including, without limitation, reports
on Forms 10-K, 10-Q and 8-K) or definitive proxy statements of the
Company filed under the Exchange Act or mailed to stockholders and
(C) all public reports and all reports and financial statements
furnished by the Company to the Nasdaq National Market System or any
U.S. national securities exchange or quotation service upon which
the Notes or Exchange Notes may be listed pursuant to requirements
of or agreements with such exchange or quotation service or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder.
(viii) Notwithstanding the foregoing provisions of this
Section 6, the Company and the Note Guarantors may for valid
business reasons, including without limitation, a potential
acquisition, divestiture of assets or other material corporate
transaction, issue a notice that the Market-Making Registration
Statement is no longer effective or the prospectus included therein
is no longer usable for offers and sales of Notes or Exchange Notes
and may issue any notice suspending use of the Market-Making
Registration Statement required under applicable securities laws to
be issued; provided that the use of the Market-Making Registration
Statement shall not be suspended for more than 60 days in the
aggregate in any consecutive 12-month period. The Market-Maker
agrees
17
that upon receipt of any notice from the Company pursuant to
Sections 6(a)(ii)(B) through (E) or this Section 6(a)(viii), it will
discontinue use of the Market-Making Registration Statement until
receipt of copies of the supplemented or amended prospectus relating
thereto or until advised in writing by the Company that the use of
the Market-Making Registration Statement may be resumed.
(b) In connection with the Market-Making Registration Statement, the
Company shall (i) make reasonably available for inspection by a
representative of, and counsel acting for, the Market-Maker all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries and (ii) use its commercially
reasonable efforts to have its officers, directors, employees, accountants
and counsel supply all relevant information reasonably requested by such
representative or counsel or the Market-Maker.
(c) Prior to the effective date of the Market-Making Registration
Statement, the Company and the Note Guarantors will use reasonable best
efforts to register or qualify, or cooperate with the Market-Maker and its
counsel in connection with the registration or qualification of, the Notes
or Exchange Notes for offer and sale under the securities or blue sky laws
of such jurisdictions as the Market-Maker reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Notes or Exchange Notes
covered by the Market-Making Registration Statement; provided that the
Company and the Note Guarantors will not be required to qualify generally
to do business in any jurisdiction where they are not then so qualified or
to take any action which would subject them to general service of process
or to taxation in any such jurisdiction where they are not then so
subject.
(d) The Company represents and agrees that the Market-Making
Registration Statement, any post-effective amendments thereto, any
amendments or supplements to the related prospectus and any documents
filed by them under the Exchange Act will, when they become effective or
are filed with the Commission, as the case may be, conform in all respects
to the requirements of the Securities Act and the Exchange Act and the
rules and regulations of the Commission thereunder and will not, as of the
effective date of such Market-Making Registration Statement or
post-effective amendments and as of the filing date of amendments or
supplements to such prospectus or filings under the Exchange Act, 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,
in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Market-Making Registration
Statement or the related prospectus in reliance upon and in conformity
with written information
18
furnished to the Company by the Market-Maker specifically for inclusion
therein, which information the parties hereto agree will be limited to the
statements concerning the market-making activities of the Market-Maker to
be set forth on the cover page and in the "Plan of Distribution" section
of the prospectus (the "Market-Maker's Information").
(i) At the time of effectiveness of the Market-Making
Registration Statement and concurrently with each time the
Market-Making Registration Statement or the related prospectus shall
be amended or such prospectus shall be supplemented, the Company
shall (if requested in writing by the Market-Maker) furnish the
Market-Maker and its counsel with a certificate of its Chairman of
the Board of Directors or its President and Chief Financial Officer
to the effect that:
(ii) the Market-Making Registration Statement has been
declared effective, (ii) in the case of an amendment to the
Market-Making Registration Statement, such amendment has become
effective under the Securities Act as of the date and time specified
in such certificate, if applicable; in the case of an amendment or
supplement to the related prospectus, such amendment or supplement
to the prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in
such certificate on the date specified therein, (iii) to the
knowledge of such officers, no stop order suspending the
effectiveness of the Market-Making Registration Statement has been
issued and no proceeding for that purpose is pending or threatened
by the Commission and (iv) such officers have carefully examined the
Market-Making Registration Statement and the prospectus (and, in the
case of an amendment or supplement, such amendment or supplement)
and as of the date of such Market-Making Registration Statement,
amendment or supplement, as applicable, the Market-Making
Registration Statement and the prospectus, as amended or
supplemented, if applicable, did not include any untrue statement of
a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(e) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus
shall be supplemented, the Company shall (if requested in writing by the
Market-Maker) furnish the Market-Maker and its counsel with the written
opinion of counsel for the Company satisfactory to the Market-Maker to the
effect that (i) the Market-Making Registration Statement has been declared
effective, (ii) in the case of an amendment to the Market-Making
Registration Statement, such amendment has become effective under the
Securities Act as of the date and time
19
specified in such opinion, if applicable; in the case of an amendment or
supplement to the related prospectus, such amendment or supplement to the
prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) under the Securities Act specified in such opinion on the date
specified therein, (iii) to the knowledge of such counsel, no stop order
suspending the effectiveness of the Market-Making Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened by the Commission and (iv) such counsel has reviewed the
Market-Making Registration Statement and the prospectus (and, in the case
of an amendment or supplement, such amendment or supplement) and
participated with officers of the Company and independent public
accountants for the Company in the preparation of such Market-Making
Registration Statement and prospectus (and, in the case of an amendment or
supplement, such amendment or supplement) and has no reason to believe
that (except for the financial statements and other financial and
statistical data contained therein as to which no belief is required) as
of the date of such Market-Making Registration Statement, amendment or
supplement, as applicable, the Market-Making Registration Statement and
the prospectus, as amended or supplemented, if applicable, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(f) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus
shall be supplemented to include audited annual financial information, the
Company shall (if requested by the Market-Maker) furnish the Market-Maker
and its counsel with a letter of PricewaterhouseCoopers LLP (or other
independent public accountants for the Company or the Note Guarantors of
nationally recognized standing) in form satisfactory to the Market-Maker,
addressed to the Market-Maker and dated the date of delivery of such
letter, (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and, (ii) in all other
respects, substantially in the form of the letter delivered to the Initial
Purchasers pursuant to Section 5(g) of the Purchase Agreement, with, in
the case of an amendment or supplement to include audited financial
information, such changes as may be necessary to reflect the amended or
supplemented financial information.
(g) The Company and the Note Guarantors, on the one hand, and the
Market-Maker, on the other hand, hereby agree to indemnify each other,
and, if applicable, contribute to the other, in accordance with Sections 7
and 8 of this Agreement.
20
(h) The Company will comply with the provisions of this Section 6 at
its own expense and will reimburse the Market-Maker for its expenses
associated with this Section 6 (including reasonable fees of counsel).
(i) The agreements contained in this Section 6 and the
representations, warranties and agreements contained in this Agreement
shall survive all offers and sales of the Notes and Exchange Notes and
shall remain in full force and effect, regardless of any termination or
cancelation of this Agreement or any investigation made by or on behalf of
any indemnified party.
(j) For purposes of this Section 6, (i) any reference to the terms
"amend," "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the prospectus contained therein shall be deemed
to refer to and include the filing under the Exchange Act of any document
deemed to be incorporated therein by reference and (ii) any reference to
the terms "Notes" or "Exchange Notes" shall be deemed to refer to and
include any securities issued in exchange for or with respect to such
Notes or Exchange Notes.
7. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by the Initial Purchasers or Exchanging Dealer, as
applicable, or in connection with the Market-Making Registration Statement, the
Company and the Note Guarantors shall jointly and severally indemnify and hold
harmless each Holder (including, without limitation, each of the Initial
Purchasers, the Market-Maker or such Exchanging Dealer), its affiliates, its
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section 7
and Section 8 as a Holder) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of Notes or Exchange Notes), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or Market-Making
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (iii) in the case of the Market-Maker, any material
breach by the Company of the representations, warranties and agreements
contained in Section 6, and shall reimburse each Holder (including, without
limitation, each of the Initial Purchasers, the Market-Maker or such Exchanging
Dealer) promptly upon demand for any legal or other expenses reasonably incurred
by that Holder in connection with investigating or defending or preparing to
defend against
21
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Note Guarantors shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with any Holders' Information or Market-Maker's Information,
respectively; and provided further that with respect to any such untrue
statement in or omission from any related preliminary prospectus, the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim, damage, liability or
action received Notes or Exchange Notes to the extent that such loss, claim,
damage, liability or action of or with respect to such Holder results from the
fact that both (A) a copy of the final prospectus was not sent or given to such
person at or prior to the written confirmation of the sale of such Notes or
Exchange Notes to such person and (B) the untrue statement in or omission from
the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f), 4(g) or 6(a)(v), as
applicable.
(b) In (i) the event of a Shelf Registration Statement, each Holder
or (ii) connection with the Market-Making Registration Statement, the
Market-Maker, as applicable, shall indemnify and hold harmless the
Company, its affiliates, its respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 7(b) and Section 8
as the Company), from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company
may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in any such Registration Statement or Market-Making Registration
Statement, respectively, or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information or Market-Maker's Information,
respectively, furnished to the Company by such Holder or the Market-Maker,
and shall reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in
connection with any such loss, claim,
22
damage, liability or action as such expenses are incurred; provided,
however, that no such Holder or the Market-Maker shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Notes or Exchange Notes pursuant
to such Shelf Registration Statement or prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 7(a) or 7(b), notify
the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 7 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such
failure; and provided further that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation; provided, however, that an indemnified
party shall have the right to employ its own counsel in any such action,
but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of
which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or
23
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for all such
indemnified party or parties. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 7(a) and 7(b), shall use
all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
8. Contribution. If the indemnification provided for in Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), 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 loss, claim, damage or liability, or action in respect
thereof, (a) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company from the initial offering and sale of the
Notes, on the one hand, and by a Holder from receiving Notes or Exchange Notes,
as applicable, registered under the Securities Act or, if applicable, by the
Market-Maker from the filing and effectiveness of a Market-Making Registration
Statement, on the other, or (b) if the allocation provided by clause (a) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (a) above but also
the relative fault of the Company and the Note Guarantors, on the one hand, and
such Holder, on the other, with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Company and the Note Guarantors or information
supplied by the Company and the Note Guarantors, on the one hand, or to any
Holders' Information or Market-Maker's Information, respectively, supplied by
such Holder, on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 8 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or
payable
24
by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8 shall be deemed
to include, for purposes of this Section 8, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 8, an indemnifying party that is a Holder of
Notes or Exchange Notes or the Market-Maker shall not be required to contribute
any amount in excess of the amount by which the total price at which the Notes
or Exchange Notes sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. 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.
9. Rules 144 and 144A. The Company and the Note Guarantors shall use
reasonable best efforts to file the reports required to be filed by them under
the Securities Act and the Exchange Act in a timely manner and, if at any time
the Company and the Note Guarantors are not required to file such reports, they
will, upon the written request of any Holder of Transfer-Restricted Notes or the
Market-Maker, make publicly available other information so long as necessary to
permit sales of such Holder's or the Market-Maker's securities pursuant to Rules
144 and 144A. The Company and the Note Guarantors covenant that they will take
such further action as any Holder of Transfer-Restricted Notes or the
Market-Maker may reasonably request, all to the extent required from time to
time to enable such Holder or the Market-Maker to sell Transfer-Restricted Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any Holder of
Transfer-Restricted Notes, the Company and the Note Guarantors shall deliver to
such Holder or the Market-Maker a written statement as to whether they have
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 9 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
10. Underwritten Registrations. If any of the Transfer-Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Majority
Holders included in such offering, subject to the consent of the Company and the
Note Guarantors (which shall not be unreasonably withheld or delayed), and such
Holders shall be responsible for all underwriting commissions and discounts in
connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer-Restricted Notes on
the basis
25
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
11. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, 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 Holders of a majority in aggregate
principal amount of the Notes and the Exchange Notes, taken as a single class
(and, with respect to the provisions of Section 6, the written consent of the
Market-Maker). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Notes or Exchange 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 Holders of a majority in aggregate
principal amount of the Notes and the Exchange Notes being sold by such Holders
pursuant to such Registration Statement whose rights are so affected.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day 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 11(b), 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 each Initial Purchaser;
(ii) if to the Initial Purchasers or the Market-Maker,
initially at their addresses set forth in the Purchase Agreement;
and
(iii) if to the Company or the Note Guarantors, initially at
the address of the Company set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
The Company and the Note Guarantors or the Initial Purchasers may,
by written notice to the other, designate additional or different addresses for
subsequent notices or communications.
26
(c) Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier)
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.
(e) Definition of Terms. For purposes of this Agreement, (i) the
term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading, (ii) the term "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act and (iii) except where
otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Remedies. In the event of a breach by the Company, the Note
Guarantors or by any Holder of any of their obligations under this
Agreement, each Holder, the Company or the Note Guarantors, as the case
may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for
a breach by the Company or the Note Guarantors of their obligations under
Section 1 or 2 hereof for which additional interest has been paid pursuant
to Section 3 hereof), will be entitled to specific performance of its
rights under this Agreement. The Company, the Note Guarantors and each
Holder agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by each such person of any of the
provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, each
such person shall waive the defense that a remedy at law would be
adequate.
(i) No Inconsistent Agreements. Each of the Company and the Note
Guarantors represents, warrants and agrees with the Initial Purchasers
that (i) it has not entered into, and shall not, on or after the date of
this Agreement, enter into any agreement that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof, (ii) it has not previously entered into any
agreement which remains in effect granting any registration rights with
respect to any of its debt securities to any person and (iii) (with
respect to the Company) without limiting the generality of the foregoing,
without the written consent of the Majority Holders and the
27
27
Market-Maker, it shall not grant to any person the right to request the
Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any of
its security holders (other than the Holders of Transfer-Restricted Notes
in such capacity) shall have the right to include any securities of the
Company in any Shelf Registration or Registered Exchange Offer other than
Transfer-Restricted Notes.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Note Guarantors and the Initial Purchasers.
PINNACLE FOODS HOLDING CORPORATION,
By
/s/ M. KELLEY MAGGS
------------------------------
Name: M. Kelley Maggs
Title: Senior Vice President, Secretary
and General Counsel
PINNACLE FOODS CORPORATION,
PF SALES, LLC,
PF DISTRIBUTION, LLC,
PINNACLE FOODS BRANDS CORPORATION,
PF STANDARDS CORPORATION,
PINNACLE FOODS MANAGEMENT CORPORATION and
PF SALES (N. CENTRAL REGION) CORP.,
as Note Guarantors,
By
/s/ M. KELLEY MAGGS
--------------------------------
Name: M. Kelley Maggs
Title: Senior Vice President, Secretary
and General Counsel
Accepted:
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
Initial Purchasers
By:
/s/ MICHAEL K. RYAN
---------------------------
Authorized Signatory
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange 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 Exchange 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, for a period of 180 days
after the Expiration Date (as defined herein), it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange 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 Exchange
Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange 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 Exchange 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, for a
period of 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.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered 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 Exchange 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 at 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 or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commission 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 Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Notes) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] 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:
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 Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange 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.
SCHEDULE I
Pinnacle Foods Corporation
Pf Sales, LLC
PF Distribution, LLC
Pinnacle Foods Brands Corporation
PF Standards Corporation
Pinnacle Foods Management Corporation
PF Sales (N. Central Region) Corp.