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Exhibit 4.1
Execution
Version
REGISTRATION RIGHTS
AGREEMENT
among
SMITHFIELD FOODS,
INC.,
and
CONTIGROUP COMPANIES,
INC.
Dated: May 7,
2007
TABLE OF
CONTENTS
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Page |
| 1. |
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Definitions and Interpretation |
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1 |
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(a) |
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Certain
Definitions |
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1 |
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(b) |
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Interpretation |
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4 |
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| 2. |
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General; Securities Subject to this Agreement |
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4 |
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(a) |
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Grant of
Rights |
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4 |
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(b) |
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Registrable Securities |
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4 |
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(c) |
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Holders
of Registrable Securities |
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5 |
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| 3. |
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Incidental or “Piggy-Back” Registration |
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5 |
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(a) |
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Request
for Incidental or “Piggy-Back” Registration |
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5 |
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| 4. |
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Lock-up Agreements |
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6 |
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(a) |
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Designated Holder Lock-up Agreements |
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6 |
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(b) |
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Third
Party Beneficiaries in Lock-up Agreements |
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6 |
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| 5. |
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Registration Procedures |
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6 |
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(a) |
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Obligations of the Company |
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6 |
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(b) |
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Seller
Obligations |
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11 |
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(c) |
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Notice to
Discontinue |
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11 |
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(d) |
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Registration Expenses |
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11 |
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| 6. |
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Indemnification; Contribution |
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12 |
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(a) |
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Indemnification by the Company |
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12 |
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(b) |
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Indemnification by Designated Holders |
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13 |
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(c) |
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Conduct
of Indemnification Proceedings |
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13 |
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(d) |
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Contribution |
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14 |
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| 7. |
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Exchange Act Reporting and Rule 144 |
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14 |
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| 8. |
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Miscellaneous |
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15 |
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(a) |
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Recapitalizations, Exchanges, etc. |
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15 |
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(b) |
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No
Inconsistent or Superior Agreements |
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15 |
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(c) |
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Remedies |
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16 |
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(d) |
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Amendments and Waivers |
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16 |
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(e) |
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Notices |
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16 |
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(f) |
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Successors and Assigns; Third Party Beneficiaries |
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17 |
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(g) |
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Headings |
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17 |
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(h) |
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GOVERNING LAW; CONSENT TO JURISDICTION |
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17 |
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(i) |
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WAIVER
OF JURY TRIAL |
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18 |
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(j) |
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Severability |
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18 |
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(k) |
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Rules of
Construction |
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18 |
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(l) |
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Interpretation |
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18 |
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(m) |
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Entire
Agreement |
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18 |
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Page |
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(n) |
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Further
Assurances |
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18 |
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(o) |
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Other
Agreements |
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19 |
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(p) |
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Counterparts |
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ii
REGISTRATION RIGHTS
AGREEMENT
REGISTRATION RIGHTS
AGREEMENT, dated May 7, 2007 (this “
Agreement ”), among Smithfield Foods, Inc., a Virginia
corporation (the “ Company ”) and
ContiGroup Companies, Inc., a Delaware corporation (“
Stockholder ”). Capitalized terms used but not
otherwise defined herein shall have the respective meanings
ascribed to such terms in Section 1.
R E C I T A L S
:
A. Pursuant to the Agreement
and Plan of Merger, dated as of September 17, 2006 (the
“ Merger Agreement ”), among the Company, KC2
Merger Sub, Inc. and Premium Standard Foods, Inc. (“
PSF ”), each outstanding share of the common stock,
par value $0.01 per share, of PSF will be converted into the right
to receive 0.6780 shares of Common Stock and $1.25 in cash, subject
to adjustment as provided in the Merger Agreement.
B. Concurrently with the
Merger Agreement, the Company, Stockholder and PSF entered into the
Voting Agreement, dated September 17, 2006 pursuant to which
the Company, among other things, has agreed to grant
“piggy-back” registration rights to Stockholder with
respect to the Registrable Securities as set forth in this
Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. Definitions and
Interpretation .
(a) Certain
Definitions . As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings
indicated:
“ Affiliate
” means any Person who is an “affiliate” as
defined in Rule 12b-2 promulgated under the Exchange
Act.
“ Agreement
” means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms
hereof.
“ Board of
Directors ” means the board of directors of the
Company.
“ Business Day
” means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized
or required by law or executive order to close.
“ Closing Price
” means, with respect to the Registrable Securities, as of
the date of determination: (i) if the Registrable Securities
are listed on a national securities exchange, the closing price per
share of a Registrable Security on such date or, if no
such
closing price on such date is reported,
the average of the closing bid and asked prices on such date, as
officially reported on the principal national securities exchange
on which the Registrable Securities are then listed or admitted to
trading; or (ii) if the Registrable Securities are not then
listed or admitted to trading on any national securities exchange,
the last sale price or, if such last sale price is not reported,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by The Nasdaq Stock Market LLC
or such other system then in use; or (iii) if on any such date
the Registrable Securities are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Registrable
Securities selected by the Company; or (iv) if none of (i),
(ii) or (iii) is applicable, a market price per share
determined in good faith by the Board of Directors. If trading is
conducted on a continuous basis on any exchange, then the closing
price shall be as at 4:00 P.M. New York City time.
“ Commission
” means the Securities and Exchange Commission.
“ Common Stock
” means the common stock, par value $0.50 per share, of the
Company or any other capital stock of the Company into which such
stock is reclassified or reconstituted and any other common stock
of the Company.
“ Company
” has the meaning set forth in the preamble to this
Agreement.
“ Company
Underwriter ” has the meaning set forth in
Section 3(a).
“ Designated
Holder ” means Stockholder, and any transferee (whether
direct or indirect) of Stockholder to whom Registrable Securities
have been transferred in accordance with Section 8(f), other
than a transferee to whom Registrable Securities have been
transferred pursuant to a Registration Statement under the
Securities Act or Rule 144 or Regulation S promulgated under
the Securities Act.
“ Designated Holder
Free Writing Prospectus ” means each Free Writing
Prospectus prepared by or on behalf of the relevant Designated
Holder or used or referred to by such Designated Holder in
connection with the offering of Registrable Securities.
“ Disclosure
Package ” means, with respect to any offering of
securities, (i) the preliminary Prospectus, (ii) each
Free Writing Prospectus and (iii) all other information, in
each case, that is deemed, under Rule 159 promulgated under the
Securities Act, to have been conveyed to purchasers of securities
at the time of sale of such securities (including a contract of
sale).
“ Exchange Act
” means the Securities Exchange Act of 1934 and the rules and
regulations of the Commission promulgated thereunder.
“ Free Writing
Prospectus ” means any “free writing
prospectus” as defined in Rule 405 promulgated under the
Securities Act.
“ Holders’
Counsel ” has the meaning set forth in
Section 5(a)(i).
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“ Incidental
Registration ” has the meaning set forth in
Section 3(a).
“ Indemnified
Party ” has the meaning set forth in
Section 6(c).
“ Indemnifying
Party ” has the meaning set forth in
Section 6(c).
“ Inspectors
” has the meaning set forth in
Section 5(a)(viii).
“ Liability
” has the meaning set forth in Section 6(a).
“ Lock-up
Agreements ” has the meaning set forth in
Section 4(a).
“ Market Price
” means, on any date of determination, the average of the
daily Closing Price of the Registrable Securities for the
immediately preceding 30 days on which the national securities
exchanges are open for trading.
“ Merger
Agreement ” has the meaning set forth in Recital
A.
“ NASD ”
means the National Association of Securities Dealers,
Inc.
“ Person ”
means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an
agency or political subdivision thereof) or other entity of
any kind, and shall include any successor (by merger or otherwise)
of such entity.
“ Prospectus
” means any “prospectus” as defined in Rule 405
promulgated under the Securities Act.
“ Records
” has the meaning set forth in
Section 5(a)(viii).
“ Registrable Class
Securities ” means the Registrable Securities and any
other securities of the Company that are of the same class as the
relevant Registrable Securities.
“ Registrable
Securities ” means each of the following: (a) any
and all shares of Common Stock received in the Merger and owned by
the Designated Holders or any other capital stock of Parent into
which such stock is reclassified or reconstituted; and (b) any
shares of Common Stock issued or issuable to any of the Designated
Holders with respect to the Registrable Securities by way of stock
dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other
reorganization or otherwise and any shares of Common Stock or
voting common stock issuable upon conversion, exercise or exchange
thereof.
“ Registration
Expenses ” has the meaning set forth in
Section 5(d).
“ Registration
Statement ” means a registration statement filed pursuant
to the Securities Act.
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“ Securities Act
” means the Securities Act of 1933 and the rules and
regulations of the Commission promulgated thereunder.
“ Transfer
” means, with respect to any security, the offer for sale,
sale, pledge, transfer or other disposition or encumbrance (or any
transaction or device that is designed to or could be expected to
result in the transfer or the disposition by any Person at any time
in the future) of such security, and shall include the entering
into of any swap, hedge or other derivatives transaction or other
transaction that transfers to another in whole or in part any
rights, economic benefits or risks of ownership, including by way
of settlement by delivery of such security or other securities in
cash or otherwise.
“ underwritten
public offering ” of securities means a public offering
of such securities registered under the Securities Act in which an
underwriter, placement agent or other intermediary participates in
the distribution of such securities.
(b) Interpretation .
Unless otherwise noted:
(i) All references to laws,
rules, regulations and forms in this Agreement shall be deemed to
be references to such laws, rules, regulations and forms, as
amended from time to time or, to the extent replaced, the
comparable successor thereto in effect at the time.
(ii) All references to
agencies, self-regulatory organizations or governmental entities in
this Agreement shall be deemed to be references to the comparable
successor thereto.
(iii) All references to
agreements and other contractual instruments shall be deemed to be
references to such agreements or other instruments as they may be
amended from time to time.
(iv) Whenever the words
“include,” “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation.”
2. General; Securities
Subject to this Agreement .
(a) Grant of Rights .
The Company hereby grants “piggy-back” registration
rights to the Designated Holders upon the terms and conditions set
forth in this Agreement.
(b) Registrable
Securities . For the purposes of this Agreement, Registrable
Securities will cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has
been declared effective under the Securities Act by the Commission
and such Registrable Securities have been disposed of pursuant to
such effective Registration Statement, (ii) the entire amount
of the Registrable Securities owned by the relevant Designated
Holder may be sold in a single fiscal quarter pursuant to Rule 144
promulgated under the Securities Act (iii) the Registrable
Securities transferred to a Person not entitled to the registration
rights granted by this Agreement, or (iv) such Registrable
Securities cease to be outstanding.
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(c) Holders of Registrable
Securities . A Person is deemed, and shall only be deemed, to
be a holder of Registrable Securities if such Person owns
Registrable Securities or has a right to acquire such Registrable
Securities and such Person is a Designated Holder. If the Company
receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Securities, the
Company may act upon the basis of the instructions, notice or
election received from the registered owner of such
Registrable Securities. Registrable Securities issuable upon
exercise of an option or upon conversion, exercise or exchange of
another security shall be deemed outstanding for the purposes of
this Agreement.
3. Incidental or
“Piggy-Back” Registration .
(a) Request for Incidental
or “Piggy-Back” Registration . At any time after
the date hereof, if the Company proposes to file a Registration
Statement with respect to an offering by the Company for its own
account (other than a Registration Statement on Form S-4 or
S-8) or for the account of any stockholder of the Company, then the
Company shall give written notice of such proposed filing to each
of the Designated Holders at least 20 days before the
anticipated filing date, and such notice shall describe the
proposed registration, offering price (or reasonable range thereof)
and distribution arrangements, and offer such Designated Holders
the opportunity to register the number of Registrable Securities as
each such Designated Holder may request (an “ Incidental
Registration ”). In connection with any Incidental
Registration under this Section 3(a) involving an underwritten
public offering, the Company shall use its reasonable efforts
(within 20 days after the notice provided for in the preceding
sentence) to cause the managing underwriter or underwriters (the
“ Company Underwriter ”) to permit each of the
Designated Holders who has requested in writing to participate in
the Incidental Registration to include the number of such
Designated Holder’s Registrable Securities specified by such
Designated Holder in such offering on the same terms and conditions
as the securities of the Company or for the account of such other
stockholder, as the case may be, included therein. In connection
with any Incidental Registration under this Section 3(a)
involving an underwritten public offering, the Company shall not be
required to include any Registrable Securities in such underwritten
public offering unless the Designated Holders thereof accept the
terms of the underwritten public offering as agreed upon between
the Company, such other stockholders, if any, and the Company
Underwriter, and then only in such quantity as the Company
Underwriter believes will not jeopardize the success of the
offering by the Company. If the Company Underwriter determines that
the registration of all or part of the Registrable Securities which
the Designated Holders have requested to be included would
materially adversely affect the success of such offering, then the
Company shall include in such Incidental Registration only the
aggregate amount of Registrable Securities that the Company
Underwriter believes may be sold without any such material adverse
effect and shall include in such registration, first , all
of the securities to be offered for the account of the Company; and
second , the Registrable Securities to be offered for the
account of the
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Designated Holders pursuant to this
Section 3 and the securities for the account of any other
stockholders of the Company, pro rata based on the number of
Registrable Securities owned by each such Designated Holder or
securities for the account of such other stockholder.
(b) Expenses . The
Company shall bear all Registration Expenses in connection with any
Incidental Registration pursuant to this Section 3, whether or
not such Incidental Registration becomes effective.
4. Lock-up Agreements
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(a) Designated Holder
Lock-up Agreements . To the extent (i) requested by the
Company Underwriter, in the case of an underwritten public
offering, and (ii) the Company and all of the
Company’s officers, directors and holders in excess of 1% of
its outstanding shares of capital stock execute agreements
identical to or more restrictive than those referred to in this
Section 4(a), each Designated Holder agrees (x) not to
effect any Transfer of any Registrable Class Securities or any
securities convertible into or exchangeable or exercisable for such
Registrable Class Securities and (y) not to make any request
for the registration of the Transfer of any Registrable Class
Securities or any securities convertible into or exchangeable or
exercisable for such Registrable Class Securities, in each case,
during the period beginning on the effective date of the
Registration Statement for such public offering and ending on the
date that is 90 days after the date of the final Prospectus
relating to such public offering (or such shorter period, if any,
mutually agreed upon by such Designated Holder and the requesting
party), except as part of such public offering. Upon request by the
Company Underwriter, each Designated Holder shall enter into
customary lock-up agreements (“ Lock-up Agreements
”) on terms consistent with the preceding sentence and no
less favorable to the Designated Holders than those applicable to
any other stockholder of the Company that signs a Lock-up Agreement
in connection with such offering. No Designated Holder subject to
this Section 4(a) shall be released from any obligation under
any agreement, arrangement or understanding entered into pursuant
to this Section 4(a) unless all other Designated Holders
subject to the same obligation are also released.
(b) Third Party
Beneficiaries in Lock-up Agreements . Any Lock-up Agreements
executed by the Designated Holders pursuant to this Section 6
shall contain provisions naming the Company as an intended
third-party beneficiary thereof and requiring the prior written
consent of the Company for any amendments thereto or waivers
thereof.
5. Registration
Procedures .
(a) Obligations of the
Company . Whenever registration of Registrable Securities has
been requested or required pursuant to Section 3, the Company
shall use its reasonable best efforts to effect the registration
and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as promptly as practicable,
and in connection with any such request or requirement, the Company
shall:
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(i) as expeditiously as
possible, prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall
be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof, and
cause such Registration Statement to become effective;
provided , however , that (A) before filing a
Registration Statement or Prospectus or any amendments or
supplements thereto (including any documents incorporated by
reference therein), or before using any Free Writing Prospectus,
the Company shall provide counsel selected by the Designated
Holders holding a majority of the Registrable Securities of
Designated Holders being registered in such registration (“
Holders’ Counsel ”) and any other Inspector
with an adequate and appropriate opportunity to review and comment
on such Registration Statement, each Prospectus included therein
(and each amendment or supplement thereto) and each Free Writing
Prospectus to be filed with the Commission, subject to such
documents being under the Company’s control, and (B) the
Company shall notify the Holders’ Counsel and each seller of
Registrable Securities pursuant to such Registration Statement of
any stop order issued or threatened by the Commission and take all
actions required to prevent the entry of such stop order or to
remove it if entered;
(ii) as expeditiously as
possible, prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of
(A) 180 days and (B) such shorter period which will
terminate when all Registrable Securities covered by such
Registration Statement have been sold;
(iii) as expeditiously as
possible, furnish to each seller of Registrable Securities, prior
to filing a Registration Statement, at least one copy of such
Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each
amendment and supplement thereto (in each case including all
exhibits thereto), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), any Prospectus
filed pursuant to Rule 424 promulgated under the Securities Act and
any Free Writing Prospectus as each such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) as expeditiously as
possible, register or qualify such Registrable Securities under
such other securities or “blue sky” laws of such
jurisdictions as any seller of Registrable Securities may request,
and to continue such registration or qualification in effect
in such jurisdiction for as long as permissible pursuant to the
laws of such jurisdiction, or for as long as any such seller
requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things
which may be reasonably necessary or advisable to enable any such
seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided ,
however , that the Company shall not be required to
(A) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this
Section 5(a)(iv), (B) subject itself to taxation in any
such jurisdiction or (C) consent to general service of process
in any such jurisdiction;
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(v) as expeditiously as
possible, notify each seller of Registrable Securities:
(A) when a Disclosure Package, Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment
to a Registration Statement has been filed with the Commission,
and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective; (B) of any
request by the Commission or any other federal or state
governmental authority for amendments or supplements to a
Disclosure Package, Registration Statement or related Prospectus or
for additional information; (C) of the issuance by the
Commission or any other federal or state governmental authority of
any stop order suspen
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