EXHIBIT 4.10
Amendment to Warrant Agreement
This Amendment (this "Amendment") is dated as of May 6, 2005 and amends
that certain Warrant Agreement dated as of September 17, 1996 (as amended,
modified, supplemented, renewed or restated from time to time, the "Warrant
Agreement") between PSF Holdings, L.L.C., a Delaware limited liability company,
and Fleet National Bank, a national banking association, as Warrant Agent (the
"Warrant Agent").
RECITALS
WHEREAS, Premium Standard Farms, Inc., a Delaware corporation (the
"Company"), is successor in interest to PSF Holdings, L.L.C. through the merger
of PSF Group Holdings, Inc., the successor in interest to PSF Holdings, L.L.C.,
with and into Premium Standard Farms, Inc;
WHEREAS, the Warrant Agreement provides that it may be amended by the
Company and Holders of Warrants exercisable for 66 2/3% or more of the aggregate
number of Units purchasable upon exercise of all Warrants then outstanding;
WHEREAS, the Company and the Holders desire to modify the terms of the
Warrant Agreement.
NOW THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in the Warrant Agreement and this Amendment, the Company
and Warrant Agent agree as follows:
1. Amended Defined Terms. Article I of the Warrant Agreement, Definitions,
shall be amended to include the following defined terms:
"Specified Value" per Unit or of any other security (herein
collectively referred to as a "Security") at any date shall be:
(1) if the Security is not registered under the Exchange Act, the
Specified Value of the Security determined in good faith by the Board of
Directors of the Company;
(2) if the Security is exercised in contemplation of an initial
public offering by the Company, the Specified Value of the Security shall
be the initial price to the public in such initial public offering; or
(3) if the Security is registered under the Exchange Act, the
average of the daily market prices (as defined below) for each Business
Day during the period commencing ten (10) Business Days prior to such date
and ending on the Business Day immediately prior to such date or, if the
Security has been registered under the Exchange Act for less than ten (10)
consecutive Business Days before such date, then the average of the daily
market prices for all of the Business Days before such date for which
daily market prices are available. If the market price is not determinable
for at least five (5)
Business Days in such period, the Specified Value of the Security shall be
determined as if the Security was not registered under the Exchange Act.
The "market price" for any Security on any Business Day means: (A)
if such Security is listed or admitted to trading on any securities
exchange, the closing price, regular way, on such day on the principal
exchange on which such Security is traded, or if no sale takes place on
such day, the average of the closing bid and asked prices on such day or
(B) if such Security is not then listed or admitted to trading on any
securities exchange, the last reported sale price on such day, or if there
is no such last reported sale price on such day, the average of the
closing bid and the asked prices on such day, as reported by a reputable
quotation source designated by the Company. If there are no such prices on
a Business Day, then the market price shall not be determinate for such
Business Day.
2. Amendment to Manner of Exercise of Warrants. Section 5.1 of the Warrant
Agreement, shall be amended to read in full as follows:
5.1 Manner of Exercise. Subject to Article 3, a Warrant
represented by a Warrant Certificate may be exercised by the registered holder
thereof during normal business hours on any Business Day, by surrendering such
Warrant Certificate, with the subscription form set forth therein (in the case
of an exercise pursuant to clause (ii) of this Section 5.1, marked "Cashless
Exercise") duly executed by such holder, by hand or by mail at the office of the
Warrant Agent as provided in Section 17.1 or, if such exercise shall be in
connection with an underwritten Public Offering, at the location designated by
the Company. Such Warrant Certificate shall be accompanied by (i) payment in
respect of each Warrant that is exercised, which shall be made by certified or
official bank or bank cashier's check payable in United States currency to the
order of the Company in an amount (the "Aggregate Exercise Price") equal to the
product of the number of Units (subject to adjustment as provided herein)
designated in such subscription form multiplied by the original Exercise Price
(subject to adjustment as provided herein) or (ii) a written notice to the
Company that the Holder is exercising the Warrant (or a portion thereof) by
authorizing the Company to withhold from the issuance a number of Units issuable
upon such exercise of the Warrant which when multiplied by the Specified Value
of the Units is equal to the Aggregate Exercise Price (and such withheld Units
shall no longer be issuable under this Warrant). Upon such surrender and
payment, such holder shall thereupon be entitled to receive the number of duly
authorized, validly issued (including, without limitation, a payment by the
withholding of Units as contemplated in Clause (ii) of this Section 5.1), fully
paid and nonassessable Units determined as provided in Articles 2 and 3, and as
and if adjusted pursuant to Article 6.
3. Miscellaneous.
Effectiveness. This Agreement shall be effective upon the signing of
an underwriting agreement in connection with the Company's initial public equity
offering.
Notices. Until a subsequent notice is given pursuant to Section 17.1
of the Warrant Agreement, the address of the Company is as follows:
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Premium Standard Farms, Inc.
Attn: Chief Financial Officer
805 Pennsylvania Avenue, Suite 200
Kansas City, Missouri 64105
Telephone: 816-472-7675
Facsimile: 816-843-1450
Governing Law and Consent to Forum. This Agreement shall be governed
by and construed in accordance with the laws of the state of New York, as
applied to contracts made and performed within the state of New York, without
regard to principles of conflicts of law. The Company and the parties each
hereby irrevocably submit to the jurisdiction of any New York state court
sitting in the city of New York or any federal court sitting in the city of New
York in respect of any suit, action or proceeding arising out of or relating to
this Agreement, and each irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Nothing herein shall affect the right of any person to serve process in
any manner permitted by law or to commence legal proceedings or otherwise
proceed against the Company in any other jurisdiction.
Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
Capitalized terms used herein but not otherwise defined have the
meaning ascribed to such terms in the Warrant Agreement, as amended by this
Amendment.
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EXHIBIT 4.10
IN WITNESS WHEREOF, the undersigned have executed this Amendment on and as
of the date first written above.
PREMIUM STANDARD FARMS, INC.
AS SUCCESSOR IN INTEREST TO PSF GROUP
HOLDINGS, INC., AS SUCCESSOR IN INTEREST
TO PSF HOLDINGS, L.L.C.
By: /s/ Stephen A. Lightstone
---------------------------------------
Name: Stephen A. Lightstone
Title: Executive Vice President, Chief
Financial Officer and Treasurer
HOLDERS:
THE MORGAN STANLEY
LEVERAGED EQUITY FUND II, L.P.
BY: MORGAN STANLEY LEVERAGED EQUITY
FUND II, INC., AS GENERAL PARTNER
By: /s/ Jeffrey D. Hahn
---------------------------------------
Name: Jeffrey D. Hahn
Title: Executive Director
MORGAN STANLEY CAPITAL
INVESTORS, L.P.
BY: METALMARK SUBADVISOR LLC, AS
ATTORNEY-IN-FACT
By: /s/ Kenneth F. Clifford
---------------------------------------
Name: Kenneth F. Clifford
Title: Managing Director
MSCP III 892 INVESTORS, L.P.
BY: METALMARK SUBADVISOR LLC, AS
ATTORNEY-IN-FACT
By: /s/ Kenneth F. Clifford
---------------------------------------
Name: Kenneth F. Clifford
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT TO WARRANT AGREEMENT
MORGAN STANLEY CAPITAL PARTNERS III, L.P.
BY: METALMARK SUBADVISOR LLC, AS
ATTORNEY-IN-FACT
By: /s/ Kenneth F. Clifford
---------------------------------------
Name: Kenneth F. Clifford
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT TO WARRANT AGREEMENT