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EXHIBIT 2.2
CONAGRA, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of June
22, 2000, is entered into by and among ConAgra, Inc., a Delaware corporation
(the "Company"), and the other persons set forth on the signature pages hereto
(the "Initial Holders").
WHEREAS, this Agreement is being entered into in connection with the
signing of that certain Agreement and Plan of Merger dated as of even date
herewith among the Company, CAG Acquisition Sub, Inc. and International Home
Foods, Inc., a Delaware corporation (the "Merger Agreement").
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which hereby are acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions.
"Advice" shall have the meaning provided in Section 2.3 hereof.
"Agreement" means this Registration Rights Agreement, as such from time
to time may be amended.
"Closing" shall have the meaning set forth for such term in the Merger
Agreement.
"Common Stock" means shares of the common stock, $5.00 par value per
share, of the Company, and any capital stock of the Company, or any successor
entity, into which such Common Stock hereafter may be changed.
"Company" shall have the meaning set forth in the introductory
paragraph hereof, and shall include the issuer of any capital stock into which
the Common Stock is changed.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Form 8-K" shall have the meaning provided in Section 2.2 hereof.
"Holder" means (i) any Initial Holder and (ii) any direct or indirect
holder of an interest in any Initial Holder who becomes a transferee of any
Registrable Shares held by any Initial Holder.
"Holder Affiliates" shall have the meaning provided in Section 2.6(a)
hereof.
"Initial Holder" shall have the meaning set forth in the introductory
paragraph hereof.
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"Inspectors" shall have the meaning provided in Section 2.2 hereof.
"Majority in Interest" shall mean Holders who hold a majority of the
Registrable Shares.
"Merger" shall mean the merger of the Company and CAG Acquisition Sub,
Inc. contemplated by the Merger Agreement.
"Merger Agreement" shall have the meaning set forth in the introductory
recitals hereof.
"NASD" shall have the meaning provided in Section 2.2(n) hereof.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"Records" shall have the meaning provided in Section 2.2 hereof.
"Registrable Shares" means at any time the Common Stock owned by the
Holders and acquired pursuant to the transactions contemplated in the Merger
Agreement (including any Common Stock issuable upon exercise of Rollover
Options), together with any shares of Common Stock or other securities issued as
a dividend on the Common Stock and any other shares of Common Stock or other
securities distributable on, or with respect to, or in substitution for such
Registrable Shares; provided, however, that Registrable Shares shall not include
any shares of Common Stock or other securities (i) the sale of which by a Holder
has been registered pursuant to the Securities Act and which shares have been
sold pursuant to such registration or (ii) which have been sold pursuant to Rule
145 promulgated under the Securities Act.
"Registration Expenses" shall have the meaning provided in Section 2.5
hereof.
"Registration Statement" shall have the meaning set forth for such term
in the Merger Agreement.
"Rollover Options" shall have the meaning set forth for such term in
the Merger Agreement.
"Rule 145" means Rule 145 (or any successor rule of similar effect)
promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration" shall have the meaning provided in Section 2.2
hereof.
"Suspension Notice" shall have the meaning provided in Section 2.3
hereof.
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ARTICLE 2
REGISTRATION RIGHTS
Section 2.1 Shelf Registration. The Company agrees that it shall file
with the SEC on Form S-3 (or any successor form) a shelf registration statement
pursuant to Rule 415 of the Securities Act (a "Shelf Registration") covering the
offer and resale by the Holders of all the Registrable Shares and shall use its
reasonable best efforts to cause the Shelf Registration to be declared effective
by the SEC immediately after the Closing. The offer and resale of such shares
shall be pursuant to a plan of distribution as proposed by a Majority in
Interest and approved by the Company, which approval will not be unreasonably
withheld; provided that such plan of distribution shall not include an
underwritten public offering. The Company shall be required to maintain the
effectiveness of the Shelf Registration for a period of one year from the
Closing.
Section 2.2 Registration Procedures. Pursuant to the Company's covenant
herein to effect a Shelf Registration, the Company will:
(a) use its reasonable best efforts to prepare and file with
the SEC a Form S-3 registration statement (or any successor form) with
respect to the Registrable Shares as soon as possible after the SEC
declares the Registration Statement effective;
(b) use its reasonable best efforts to have all comments that
the SEC may have with respect to the Shelf Registration resolved with
the SEC prior to the Closing;
(c) use its reasonable best efforts to file with the SEC
immediately after the Closing a Form 8-K Report (or any successor form)
required in connection with the Merger ("Form 8-K"), including the
financial statements required by Item 2 and Item 7 of Form 8-K;
(d) use its reasonable best efforts to cause the Shelf
Registration to be declared effective by the SEC immediately after the
Closing;
(e) prepare and file with the SEC such amendments,
post-effective amendments, and supplements to the Shelf Registration
and the prospectus used in connection therewith as may be necessary to
keep the Shelf Registration effective for a period of one year from the
Closing and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Shelf
Registration during such period in accordance with the intended methods
of disposition by the sellers thereof set forth in such registration
statement;
(f) furnish to each Holder of Registrable Shares such number
of copies of the Shelf Registration, each amendment and supplement
thereto, the prospectus included in the Shelf Registration (including
each preliminary prospectus), any documents incorporated by reference
therein and such other documents as such Holder may reasonably request
in order to facilitate the disposition of the Registrable Shares owned
by such Holder (it being
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understood that, subject to Section 2.3 and the requirements of the
Securities Act and applicable state securities laws, the Company
consents to the use of the prospectus and any amendment or supplement
thereto by each Holder in connection with the offering and sale of the
Registrable Shares covered by the registration statement of which such
prospectus, amendment or supplement is a part);
(g) use commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the Holders reasonably request to the extent such
registration or qualification is required; use reasonable best efforts
to keep each such registration or qualification (or exemption
therefrom) effective during the period in which the Shelf Registration
is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each
Holder to consummate the disposition of the Registrable Shares owned by
such Holder in such jurisdictions (provided, however, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph or (ii) consent to general service of process in
any such jurisdiction);
(h) promptly notify each Holder and (if requested by any
Holder) confirm such notice in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed and,
with respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of the issuance by
any state securities or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of
the Registrable Shares under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, and (iii) of the
happening of any event which makes any statement made in a registration
statement or related prospectus untrue in any material respect or which
requires the making of any changes in such registration statement,
prospectus or documents so that they will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and, as soon as possible thereafter, prepare
and file with the SEC and furnish a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue
statement of a material fact or omit a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading;
(i) make generally available to the Company's securityholders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 30 days after the end of the 12-month
period beginning with the first day of the Company's first fiscal
quarter commencing after the effective date of a registration
statement, which earnings statement shall cover said 12-month period,
and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and
8-K under the Exchange Act and otherwise complies with Rule 158 under
the Securities Act;
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(j) if reasonably requested by any Initial Holder promptly
incorporate in a prospectus supplement or post-effective amendment such
information as any Holder reasonably requests to be included therein
(relating to the naming of additional Holders therein or specifying the
number of Registrable Shares held by each such Holder), and promptly
make all required filings of such prospectus supplement;
(k) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into a registration
statement (in the form in which it was incorporated), deliver a copy of
each such document to each Holder upon such Holder's written request;
(l) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such
securities to be in such denominations and registered in such names as
such Holders may request and keep available and make available to the
Company's transfer agent prior to the effectiveness of such
registration statement a supply of such certificates;
(m) promptly make available for inspection by any Holder and
any attorney, accountant or other agent or representative retained by
any such Holder (collectively, the "Inspectors"), all publicly
available documents of the Company (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility;
(n) use all its reasonable best efforts to cause the
Registrable Shares included in any registration statement to be (A)
listed on each securities exchange, if any, on which securities of the
same type issued by the Company are then listed, or (B) authorized to
be quoted and/or listed (to the extent applicable) on the Nasdaq
National Market if the Registrable Shares so qualify;
(o) provide a CUSIP number for the Registrable Shares included
in any registration statement not later than the effective date of such
registration statement;
(p) cooperate with each Holder participating in the
disposition of such Registrable Shares and their respective counsel in
all reasonable respects in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
("NASD");
(q) during the period when the prospectus is required to be
delivered under the Securities Act, file within the required time
periods all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(r) notify each Holder promptly of any request by the SEC for
the amending or supplementing of such registration statement or
prospectus or for additional information;
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(s) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel for the Company, is required in connection with the
distribution of the Registrable Shares; and
(t) advise each Holder, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the
SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for such purpose and
promptly use all commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal at the earliest
possible moment if such stop order should be issued.
Section 2.3 Suspension of Dispositions. Each Holder agrees that, upon
receipt of any notice (a "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 2.2(e)(iii), such Holder will
forthwith discontinue disposition of Registrable Shares pursuant to any
prospectus until such Holder's receipt of the copies of the supplemented or
amended prospectus, or until it is advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus, and, if so directed by the Company, such Holder will deliver to
the Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. The Company shall use its reasonable best
efforts and take such actions as are necessary to render the Advice as soon as
possible.
Section 2.4 Rule 145. The Company covenants that it will, for a period
beginning upon the first anniversary of the Closing and ending upon the second
anniversary of the Closing, file any reports required to be filed by it under
the Securities Act and the Exchange Act and that it will take such further
action as the Holders may reasonably request to the extent required from time to
time to enable the Holders to sell Registrable Shares without registration under
the Securities Act within the limitation of the exemptions provided by Rule 145
under the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such reporting requirements. If any Holder proposes
to sell Registrable Shares pursuant to Rule 145, the Company shall cooperate
with such Holder to enable such sale to be made in accordance with applicable
laws, rules and regulations, the requirements of the Company's transfer agent,
and the reasonable requirements of the broker, if any, through which the sales
are proposed to be executed.
Section 2.5 Registration Expenses. Any expenses incident to the
Company's performance of or compliance with this Agreement, which may include
without limitation (i) all registration and filing fees, (ii) all fees and
expenses associated with filings required to be made with the NASD, as may be
required by the rules and regulations of the NASD, (iii) fees and expenses of
compliance with securities or "blue sky" laws (including reasonable fees and
disbursements of counsel in connection with "blue sky" qualifications of the
Registrable Shares), (iv) rating agency fees, (v) printing expenses (including
expenses of printing certificates for the Registrable Shares in a form eligible
for deposit with Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by a Holder), (vi) messenger and delivery
expenses, (vii) the Company's
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internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), (viii) the fees
and expenses incurred in connection with any listing of the Registrable Shares,
(ix) fees and expenses of counsel for the Company and its independent certified
public accountants, (x) securities acts liability insurance (if the Company
elects to obtain such insurance), (xi) the fees and expenses of any special
experts retained by the Company in connection with such registration, and (xii)
the fees and expenses of other persons retained by the Company will be borne by
the Company; provided that in no event shall Registration Expenses include any
underwriting discounts or commissions or transfer taxes or the fees and expenses
of counsel for the Holders.
Section 2.6 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the
fullest extent permitted by law, each Holder, and each of its
employees, advisors, agents, representatives, partners, members,
officers, and directors and each Person who controls such Holder
(within the meaning of the Securities Act or the Exchange Act) and any
agent or investment advisor thereof (collectively, the "Holder
Affiliates") (i) against any and all losses, claims, damages,
liabilities, and expenses, joint or several (including, without
limitation, any legal or other expenses incurred in connection with
defending or investigating any such action or claim except as limited
by Section 2.6(c), based upon, arising out of or resulting from any
untrue or alleged untrue statement of a material fact contained in any
registration statement or any amendment thereof, prospectus, or
preliminary prospectus relating to the offer and sale of Registrable
Shares or any amendment thereof or supplement thereto, or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) against
any and all loss, liability, claim, damage, and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement
(effected with the Company's consent) of any litigation or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon, arising
out of or resulting from any such untrue statement or omission or
alleged untrue statement or omission, and (iii) against any and all
costs and expenses (including reasonable fees and disbursements of
counsel) as may be reasonably incurred in investigating, preparing, or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon, arising out of or resulting from any such untrue
statement or omission or alleged untrue statement or omission, to the
extent that any such expense or cost is not paid under clause (i) or
(ii) above; except insofar as the same are made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of such Holder or any Holder Affiliate expressly for
inclusion therein. The reimbursements required by this Section 2.6(a)
will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses
incurred.
(b) In connection with any registration statement in which a
Holder is participating, each such Holder will furnish to the Company
in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such
Holder will indemnify and reimburse the Company and its directors and
officers and each
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Person who controls the Company (within the meaning of the Securities
Act or the Exchange Act) against any and all losses, claims, damages,
liabilities, and expenses (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such claim except as limited by Section 2.6(c),based
upon, arising out of or resulting from any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any
information or affidavit so furnished in writing by such Holder or any
of its Holder Affiliates specifically for inclusion in the registration
statement or any amendment thereof; provided that the obligation to
indemnify will be several, not joint and several, among such Holders,
and the liability of each such Holder will be in proportion to, and
provided further that such liability will be limited to, the net amount
received by such Holder from the sale of Registrable Shares pursuant to
such registration statement; provided, however, that such Holder shall
not be liable in any such case to the extent that prior to the filing
of any such registration statement or prospectus or amendment thereof
or supplement thereto, such Holder has furnished in writing to the
Company information expressly for use in such registration statement or
prospectus or any amendment thereof or supplement thereto which
corrected or made not misleading information previously furnished to
the Company.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to
give such notice shall not limit the rights of such Person except to
the extent that the indemnifying party is materially prejudiced
thereby, and in no event shall such failure relieve the indemnifying
party from any other liability that it may have to such indemnified
party) and (ii) unless such indemnified party has been advised by
counsel that a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (A) the indemnifying party has agreed to
pay such fees or expenses, (B) the indemnifying party shall have failed
to assume the defense of such claim and employ counsel reasonably
satisfactory to such Person, (C) the named parties to any such action
or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified
party shall have been advised by counsel in writing that there is a
conflict of interest on the part of counsel employed by the
indemnifying party to represent such indemnified party, or (D) the
indemnified party's counsel shall have advised the indemnified party
that there are defenses available to the indemnified party that are
different from or in addition to those available to the indemnifying
party and that the indemnifying party is not able to assert on behalf
of or in the name of the indemnified party (in which case of either
(A), (B), (C) or (D), if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel
at the expense of the indemnifying party, (in which case of either (C)
or (D)), the
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indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of such indemnified party but shall
have the right to participate through its own counsel). If such defense
is not assumed by the indemnifying party as permitted hereunder, the
indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). If such defense is assumed
by the indemnifying party pursuant to the provisions hereof, such
indemnifying party shall not settle or otherwise compromise the
applicable claim unless (1) such settlement or compromise contains a
full and unconditional release of the indemnified party or (2) the
indemnified party otherwise consents in writing (such consent not to be
unreasonably withheld). An indemnifying party who is not entitled to,
or elects not to, assume the defense of a claim will not be obligated
to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim,
unless any indemnified party shall have been advised by counsel in
writing that a conflict of interest exists between such indemnified
party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay
the reasonable fees and disbursements of such additional counsel or
counsels.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.6(a) or Section
2.6(b) are unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
actions which resulted in the losses, claims, damages, liabilities or
expenses or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
party or indemnified party, and the parties, relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 2.6(d)
were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 2.6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.6(c), defending any
such action or claim. Notwithstanding the provisions of this Section
2.6(d), no Holder shall be required to contribute an amount greater
than the dollar amount by which the proceeds received by such Holder
with respect to the sale of any Registrable Shares exceeds the amount
of damages which such Holder has otherwise been required to pay by
reason of such statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section
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11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations in this Section 2.6(d) to contribute shall be
several in proportion to the amount of Registrable Shares registered by
them and not joint.
If sufficient indemnification is available under this Section
2.6, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in Section 2.6(a) and Section 2.6(b) without
regard to the relative fault of said indemnifying party or indemnified
party or any other equitable consideration provided for in this Section
2.6(d).
(e) The indemnification and contribution provided for under
this Agreement will remain in full force and effect regardless of the
termination of this Agreement or any investigation made by or on behalf
of the indemnified party or any officer, director, or controlling
Person of such indemnified party and will survive the transfer of
securities.
(f) The obligations of the parties under this Section 2.6
shall be in addition to any liability which any party may otherwise
have to any other party.
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ARTICLE 3
MISCELLANEOUS
Section 3.1 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be
sufficiently given if made by hand delivery, by fax, or by certified or
registered mail, return recent requested, postage prepaid, addressed as follows
(or at such other address as may be substituted by notice given as herein
provided):
If to the Company:
ConAgra, Inc.
One ConAgra Dr.
Omaha, Nebraska 68102
Attention: Chief Executive Officer
Telecopier: (402) 595-4709
Copies to:
McGrath, North, Mullin & Kratz, P.C.
One Central Park Plaza
Suite 1400
222 South 15th Street
Omaha, Nebraska 68102
Attention: Roger W. Wells
Telecopier: (402) 341-0216
If to a Holder:
c/o Hicks, Muse, Tate & Furst, Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Telecopier: (214) 740-7313
Copies to:
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: A. Winston Oxley
Telecopier: (214) 220-7716
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Any notices or communication hereunder shall be deemed to have been
given or made as of the date so delivered if delivered by hand; when receipt is
acknowledged, if delivered by fax; and five calendar days after mailing if sent
by certified or registered mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 3.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof. The Registration
Rights Agreement made as of November 1, 1996 among International Home Foods,
Inc., AHP Subsidiary Holding Corporation and AHFP Holding Corporation is hereby
terminated.
Section 3.3 Governing Law. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 3.4 Duplicate Originals. All parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
Section 3.5 Severability. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws effect during
the term of this Agreement, such provision shall be fully serverable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added automatically as a
part of this Agreement a provision as similar in terms of such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and
enforceable.
Section 3.6 No Waivers; Amendments.
3.6.1 No failure or delay on the part of the Company or any
Holder in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or any Holder at law or in equity.
3.6.2 Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Company and a Majority in Interest.
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Section 3.7 No Inconsistent Agreements. The Company represents that it
currently is not a party to or bound by, and agrees that from and after the date
hereof the Company shall not enter into any agreements providing any rights to
any third party that are inconsistent with the rights of Holders under this
Agreement without the prior written consent of a Majority in Interest.
Section 3.8 Assignment of Registration Rights. Each Holder may assign
all or any part of its rights under this Agreement to any other Holder to whom
such Holder sells, transfers or assigns such Registrable Shares. In the event
that the Holder shall assign its rights pursuant to this Agreement in connection
with the transfer of less than all its Registrable Shares to another Holder, the
Holder shall also retain his rights with respect to its remaining Registrable
Shares.
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SIGNATURES TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, all as of the date first written above.
COMPANY:
CONAGRA, INC.
By: /s/ Dwight J. Goslee
------------------------------------
Name: Dwight J. Goslee
Title: Senior Vice President,
Mergers and Acquisitions
HOLDERS:
THOMAS O. HICKS
By: /s/ Thomas O. Hicks
-----------------------------------
MICHAEL J. LEVITT
By: /s/ Michael J. Levitt
-----------------------------------
C. DEAN METROPOULOS
By: /s/ C. Dean Metropoulos
-----------------------------------
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HICKS, MUSE, TATE & FURST EQUITY
FUND III, L.P.
By: HM3/GP Partners, L.P.,
Its General Partner
By: Hicks, Muse GP Partners III, L.P.,
Its General Partner
By: Hicks, Muse Fund III Incorporated,
Its General Partner
By: /s/ Thomas O. Hicks
-------------------------------
Name: Thomas O. Hicks
Title: Chairman of the Board
HM3/IH PARTNERS, L.P.
By: HM3/GP Partners, L.P.,
Its General Partner
By: Hicks, Muse GP Partners III, L.P.,
Its General Partner
By: Hicks, Muse Fund III Incorporated,
Its General Partner
By: /s/ Thomas O. Hicks
-------------------------------
Name: Thomas O. Hicks
Title: Chairman of the Board
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HM3 COINVESTORS, L.P.
By: Hicks, Muse GP Partners III, L.P.,
Its General Partner
By: Hicks, Muse Fund III Incorporated,
Its General Partner
By: /s/ Thomas O. Hicks
-------------------------------
Name: Thomas O. Hicks
Title: Chairman of the Board