EXHIBIT 4.7
Execution Copy
LAND O'LAKES, INC.
$350,000,000
8 3/4% Senior Notes due 2011
Purchase Agreement
November 8, 2001
X.X. Xxxxxx Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Land O'Lakes, Inc., a Minnesota cooperative corporation (the
"Company"), proposes to issue and sell to the several Initial Purchasers listed
in Schedule 1 hereto (the "Initial Purchasers"), for whom you are acting as
representative (the "Representative"), $350,000,000 principal amount of its
8 3/4% Senior Notes due 2011 (the "Securities"). The Securities will be issued
pursuant to an Indenture to be dated as of November 14, 2001 among the Company,
each entity listed on Schedule 2 hereto (collectively, the "Subsidiary
Guarantors") and U.S. Bank N.A., as trustee (the "Trustee"), and will be
guaranteed on an unsecured senior basis by each of the Subsidiary Guarantors
(the "Subsidiary Guarantees").
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated October 26, 2001 (the
"Preliminary Offering Memorandum"), and will prepare an offering memorandum
dated the date hereof (the "Offering Memorandum") setting forth information
concerning the Company and the Securities. Copies of the Preliminary Offering
Memorandum have been, and copies of the Offering Memorandum will be, delivered
by the Company to the Initial Purchasers pursuant to the terms of this
Agreement. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Securities by the Initial Purchasers in
accordance with the terms and conditions of this Agreement.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement"), pursuant to which the Company
and the Subsidiary Guarantors will agree to file one or more registration
statements with the Securities and Exchange Commission (the "Commission")
providing for the registration under the Securities Act of the Securities or the
Exchange Securities referred to (and as defined in) the Registration Rights
Agreement.
Pursuant to an Agreement and Plan of Merger (the "Merger Agreement")
dated as of June 17, 2001 among the Company, LOL Holdings II, Inc. ("LOL II"), a
wholly owned subsidiary of the Company, LOL Holdings III, Inc. ("LOL III"), a
wholly owned subsidiary of LOL II, and Purina Xxxxx Inc. ("Purina Xxxxx"), on
October 11, 2001, (1) LOL III merged with and into Purina Xxxxx, with Purina
Xxxxx as the surviving corporation (the "Merger") and (2) each share of Purina
Xxxxx common stock was converted into the right to receive $23.00 per share in
cash and each Purina Xxxxx stock option, stock appreciation right and
convertible note was converted into the right to receive a cash sum based on the
common stock consideration of $23.00 per share. As a result of the Merger,
Purina Xxxxx became an indirect wholly owned subsidiary of the Company.
Following the Merger, Purina Xxxxx was converted into a limited liability
company and contributed to Land O'Lakes Farmland Feed LLC, a joint venture
between the Company and Farmland Industries, Inc. In connection with the Merger,
the Company entered into, and made initial borrowings under (i) the Credit
Agreement, dated October 11, 2001, among the Company, The Chase Manhattan Bank,
as administrative agent and collateral agent, and the lenders party thereto, and
documents related thereto (collectively, the "Credit Agreement"), (ii) the
Amended and Restated Five-Year Credit Agreement dated as of October 11, 2001,
among the Company, The Chase Manhattan Bank, as co-administrative agent, CoBank,
ACB, as co-administrative agent and the lenders party thereto, and documents
related thereto (collectively, the "Revolving Credit Agreement") and (iii) the
Credit Agreement dated as of October 11, 2001, between the Company and CoBank,
ACB, as lender, and documents related thereto (collectively, the "Receivables
Bridge Agreement", and together with the Credit Agreement and Revolving Credit
Agreement, the "Bank Agreements"). The Securities are being issued to refinance
certain indebtedness outstanding under the Credit Agreement and Revolving Credit
Agreement.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees to
issue and sell the Securities to the several Initial Purchasers as provided in
this Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees to purchase from the Company, severally and not jointly,
the principal amount of Securities set forth
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opposite such Initial Purchaser's name in Schedule 1 hereto at a price equal to
98% of the principal amount thereof plus accrued interest, if any, from November
14, 2001 to the date of payment and delivery. The Company will not be obligated
to deliver any of the Securities except upon payment for all the Securities to
be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer
the Securities for resale on the terms and subject to the conditions set forth
herein and in the Offering Memorandum. Each Initial Purchaser, severally and not
jointly, represents, warrants and agrees that:
(i) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities as part
of their initial offering except:
(A) within the United States to persons whom it
reasonably believes to be qualified institutional buyers, as
defined in Rule 144A under the Securities Act ("Rule 144A")
(a "QIB"), in transactions pursuant to Rule 144A, and in
connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the
Securities is aware that such sale is being made in reliance
on Rule 144A; or
(B) in accordance with the restrictions set forth in
Annex A hereto;
(iii) it is a QIB; and
(iv) it is purchasing the Securities pursuant to a private
sale exempt from registration under the Securities Act.
(c) Each Initial Purchaser acknowledges and agrees that the Company
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 5(f) and 5(g), counsel for the Company and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their agreements
contained in paragraph (b) above (including Annex A hereto), and each Initial
Purchaser hereby consents to such reliance.
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(d) The Company and each of the Subsidiary Guarantors acknowledges and
agrees that the Initial Purchasers may offer and sell Securities to or through
any affiliate of an Initial Purchaser and that any such affiliate may offer and
sell Securities purchased by it to or through any Initial Purchaser.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or essentially simultaneously with the confirmation of sale by such
Initial Purchaser to any purchaser of the Securities purchased by the Initial
Purchaser from the Company pursuant thereto, such Initial Purchaser shall
furnish to that purchaser a copy of the Offering Memorandum (and any amendment
or supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale where required by
applicable law).
2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of Faegre & Xxxxxx LLP, Minneapolis, MN at 10:00
A.M., New York City time, on November 14, 2001, or at such other time on the
same or such other date, not later than the fifth Business Day thereafter, as
the Representative and the Company may agree upon in writing. The time and date
of such payment and delivery is referred to herein as the "Closing Date". As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for inspection by the
Representative on behalf of the Initial Purchasers not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
3. Representations and Warranties of the Company and the Subsidiary
Guarantors. The Company and the Subsidiary Guarantors jointly and severally
represent and warrant to each Initial Purchaser that:
(a) Offering Memorandum. The Preliminary Offering Memorandum, as of its
date, did not, and the Offering Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the Securities and on the Closing Date,
will not, contain any 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; provided that the
Company and the Subsidiary Guarantors make no representation or warranty with
respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the
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Representative expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum.
(b) Financial Statements. The financial statements and the related
notes thereto included in the Preliminary Offering Memorandum and the Offering
Memorandum present fairly the financial position of the Company and its
Subsidiaries (as defined below) and Purina Xxxxx and its consolidated
subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified, subject to year-end
audit adjustments in the case of interim unaudited financial statements ; such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; the pro forma financial
information and the related notes thereto included in the Preliminary Offering
Memorandum and the Offering Memorandum is based upon good faith estimates and
assumptions believed by the Company to be reasonable; and the principal
assumptions underlying such pro forma financial information are set forth in the
Preliminary Offering Memorandum and the Offering Memorandum. For purposes of
this Purchase Agreement, the term "Subsidiary" means any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of capital stock or other such interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by the Company, the
Company and its Subsidiaries or the Company's Subsidiaries.
(c) No Material Adverse Change. Except as stated in the Offering
Memorandum, since the date of the most recent financial statements of the
Company and Purina Xxxxx, as applicable, included in the Offering Memorandum,
(i) there has not been any change in the capital stock or long-term debt of the
Company or its Subsidiaries, or any dividend or distribution of any kind
declared, paid or made by the Company or its Subsidiaries on any class of
capital stock, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, properties, management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries taken as a whole,
other than changes in the capital structure of Purina Xxxxx as a result of the
Merger; (ii) neither the Company nor any of its Subsidiaries has entered into
any transaction or agreement that is material to the Company and Subsidiaries
taken as a whole (whether or not in the ordinary course of business) or incurred
any liability or obligation, direct or contingent, that is material to the
Company and its Subsidiaries taken as a whole (other than in the ordinary course
of business); and (iii) the Company and its Subsidiaries taken as a whole have
not sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority.
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(d) Incorporation and Good Standing. The Company and each of the
Subsidiary Guarantors have been duly incorporated or organized, as the case may
be, and are validly existing as corporations or other business entities, as the
case may be, in good standing under the laws of their respective jurisdictions
of incorporation or organization, as the case may be, are duly qualified to do
business and are in good standing as foreign entities in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority (corporate and other) necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where
the failure to be so qualified or have such power or authority does not or would
not, individually or in the aggregate, have a material adverse effect on the
general affairs, business, properties, management, financial position,
stockholders' equity or results of operations of the Company and its Subsidiary
Guarantors taken as a whole or on the performance by the Company of its
obligations under the Securities (a "Material Adverse Effect"). The Company does
not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Schedule 3 to this Agreement.
(e) Capitalization. The Company has an authorized capitalization as set
forth in the Offering Memorandum under the heading "Capitalization"; and except
as set forth in Schedule 3, all the outstanding shares of capital stock,
membership interests or other equity interests of each Subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
nonassessable and are owned directly or indirectly by the Company, free and
clear of any lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party, other than liens granted
pursuant to the Bank Agreements. Schedule 3 lists the governance and economic
interests of the Company in each of its Subsidiaries.
(f) Due Authorization. The Company and each of the Subsidiary
Guarantors had full corporate or other organizational right, power and authority
to execute and deliver each of the Bank Agreements to which they were a party
and to perform their respective obligations thereunder; the Company and each of
the Subsidiary Guarantors signatory thereto have full corporate or other
organizational right, power and authority to execute and deliver this Agreement,
the Securities, the Indenture (including each Subsidiary Guarantee set forth
therein), the Exchange Securities and the Registration Rights Agreement
(collectively, together with the Merger Agreement and the Bank Agreements, the
"Transaction Documents") and to perform their respective obligations hereunder
and thereunder; and all corporate or other organizational action required to be
taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.
(g) The Indenture. The Indenture has been duly authorized by the
Company and each of the Subsidiary Guarantors and, when duly executed and
delivered in
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accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the Subsidiary
Guarantors enforceable against the Company and each of the Subsidiary Guarantors
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability (whether
considered a proceeding in equity or at law) (collectively, the "Enforceability
Exceptions"); and on the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder.
(h) The Securities and the Guarantees. The Securities have been duly
authorized by the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture (assuming the Indenture is a valid and
legally binding obligation of the Trustee) and paid for as provided herein, will
be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the Guarantees have been duly authorized
by each of the Subsidiary Guarantors and, when the Securities have been duly
executed, authenticated, issued and delivered as provided in the Indenture
(assuming the Indenture is a valid and legally binding obligation of the
Trustee) and paid for as provided herein, will be valid and legally binding
obligations of each of the Subsidiary Guarantors, enforceable against each of
the Subsidiary Guarantors in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(i) The Exchange Securities. On the Closing Date, the Exchange
Securities (including the related Subsidiary Guarantees) will have been duly
authorized by the Company, or by each of the Subsidiary Guarantors in the case
of the related Subsidiary Guarantees, and, when duly executed, authenticated,
issued and delivered as contemplated by the Registration Rights Agreement, will
be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer of the Exchange Securities, and
each of the Subsidiary Guarantors, as guarantor, enforceable against the Company
and each of the Subsidiary Guarantors, as the case may be, in accordance with
their terms, subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture.
(j) Purchase and Registration Rights Agreements. This Agreement has
been duly authorized, executed and delivered by the Company and each of the
Subsidiary Guarantors; and the Registration Rights Agreement has been duly
authorized by the Company and each of the Subsidiary Guarantors and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company
and each of the Subsidiary
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Guarantors enforceable against the Company and each of the Subsidiary Guarantors
in accordance with its terms, subject to the Enforceability Exceptions, and
except that rights to indemnity and contribution may be limited by applicable
law and public policy.
(k) Other Transaction Documents. The Merger Agreement has been duly
authorized, executed and delivered by the Company and the Subsidiaries party
thereto and constitutes a valid and legally binding agreement of the Company and
such Subsidiaries enforceable against the Company and such Subsidiaries in
accordance with its terms, subject to the Enforceability Exceptions. Each of the
Bank Agreements have been duly authorized, executed and delivered by the Company
and the Subsidiaries party thereto and constitute valid and legally binding
agreements of the Company and such subsidiaries enforceable against the Company
and such Subsidiaries in accordance with their terms, subject to the
Enforceability Exceptions.
(l) Descriptions of Transaction Documents. Each Transaction Document
conforms in all material respects to the description thereof contained in the
Preliminary Offering Memorandum and the Offering Memorandum.
(m) No Violation or Default. Neither the Company nor any of its
Subsidiaries is (i) in violation of its charter or by-laws (or other comparable
organizational documents); (ii) in default in any material respect, and no event
has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to which
any of the property or assets of the Company or any of its Subsidiaries is
subject; or (iii) in violation in any material respect of any law or statute or
any judgment, order or regulation of any court or arbitrator or governmental or
regulatory authority to which it or its property or assets may be subject,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(n) No Conflicts With Existing Instruments; No Consents Required. The
execution, delivery and performance by the Company and each of the Subsidiary
Guarantors of each of the Transaction Documents to which each is a party, the
issuance and sale of the Securities and compliance by the Company and each of
the Subsidiary Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or
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any of its Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the charter or by-laws of the Company or any of
its Subsidiaries or any law or statute or any judgment, order or regulation of
any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective properties or assets; and, assuming the accuracy of the
representations, warranties and agreements of the initial purchasers herein, no
consent, approval, authorization, order, registration or qualification of or
with any such court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company and each of
the Subsidiary Guarantors of each of the Transaction Documents to which each is
a party, the issuance and sale of the Securities and compliance by the Company
and each of the Subsidiary Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, orders and registrations or
qualifications as may be required (i) under applicable state securities laws in
connection with the purchase and resale of the Securities by the Initial
Purchasers and (ii) with respect to the Exchange Securities under the Securities
Act and applicable state securities laws as contemplated by the Registration
Rights Agreement.
(o) Legal Proceedings. Except as specifically described in Offering
Memorandum (or, if the Offering Memorandum is not in existence, the most recent
Preliminary Offering Memorandum), there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending or threatened to which the
Company or any of its Subsidiaries is or would be a party or to which any
property of the Company or any of its Subsidiaries is or would be the subject
that, individually or in the aggregate, if determined adversely to the Company
or any of its Subsidiaries, could reasonably be expected to have a Material
Adverse Effect; and to the knowledge of the Company and each of the Subsidiary
Guarantors, no such investigations, actions, suits or proceedings are threatened
or contemplated by any governmental or regulatory authority or threatened by
others.
(p) Independent Accountants. KPMG LLP, who have certified certain
financial statements of the Company and its Subsidiaries and Purina Xxxxx and
its consolidated subsidiaries, are independent public accountants with respect
to the Company and its subsidiaries and Purina Xxxxx and its consolidated
subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants and its
interpretations and rulings thereunder.
(q) Title to Real and Personal Property. The Company and its
Subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property that
are material to the respective businesses of the Company and its Subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except for those incurred to secure amounts outstanding
under the Bank Agreements and those that (i)
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do not materially interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries or (ii) could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(r) Title to Intellectual Property. The Company and its Subsidiaries
own or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses;
and the conduct of their respective businesses will not conflict in any material
respect with, and the Company and its Subsidiaries have not received any notice
of any claim of conflict with, any such rights of others, except as could not
reasonably be expected to have Material Adverse Effect.
(s) Investment Company Act. Neither the Company nor any of its
Subsidiaries is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Preliminary Offering Memorandum and the Offering Memorandum none of them will
be, an "investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively, "Investment
Company Act").
(t) Public Utility Holding Company Act. Neither the Company nor any of
its Subsidiaries is a "holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(u) Taxes. The Company and its Subsidiaries have paid all federal,
state, local and foreign taxes and filed all tax returns required to be paid or
filed through the date hereof except for taxes being contested in good faith for
which adequate reserves have been provided; and except as otherwise specifically
disclosed in the Preliminary Offering Memorandum and the Offering Memorandum,
there is no tax deficiency that has been, or could reasonably be expected to be,
asserted against the Company or any of its Subsidiaries, which had, or could
reasonably be expected to have, a Material Adverse Effect.
(v) Licenses and Permits. The Company and its Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Preliminary Offering Memorandum and
the Offering Memorandum, except where the failure to possess or make the same
would not, individually or in the aggregate,
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reasonably be expected to have a Material Adverse Effect; and except as
specifically described in the Preliminary Offering Memorandum and the Offering
Memorandum, neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course, except where
the revocation or modification of any such license, certificate, authorization
or permit or the failure to renew any such license, certificate, authorization
or permit could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(w) Material Agreements. Schedule 4 to this Agreement lists (i) all
material agreements (within the meaning of Item 601(b)(10) of Regulation S-K
under the Exchange Act, excluding material agreements under Item 601(b)(10)(iii)
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the properties or
assets of the Company or any of its Subsidiaries is subject and (ii) all
agreements and instruments which would be required to be filed under Items
601(b)(2) and (4) of Regulation S-K if the Company were subject to the reporting
requirements of the Exchange Act and the regulations promulgated thereunder.
(x) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company and each of the Subsidiary Guarantors, is threatened that, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
(y) Compliance With Environmental Laws. Except as described in the
Offering Memorandum, the Company and its Subsidiaries (i) are in compliance with
any and all applicable federal, state, local and foreign laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), and none of them has received notice of
any outstanding violations of any Environmental Laws; (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except for any such failure to comply, or to receive required permits,
licenses or approvals, as would not, individually or in the aggregate, have a
Material Adverse Effect.
(z) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its Subsidiaries for employees or former employees of the
Company and its Subsidiaries has been maintained in compliance with its terms
and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA
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and the Internal Revenue Code of 1986, as amended (the "Code"). No prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption. For each such plan that is
subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
no "accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the assets of
each such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions, except where such deficiency or failure
to exceed could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(aa) Accounting Controls. The Company and its Subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(bb) Insurance. The Company and its Subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
which insurance is in amounts and insures against such losses and risks as are
adequate to protect the Company and its Subsidiaries and their respective
businesses; and neither the Company nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made in order to continue
such insurance or (ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to
continue its business, except, in either case, as would not be expected to have
a Material Adverse Effect.
(cc) No Unlawful Payments. Neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company and each of the Subsidiary
Guarantors, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its Subsidiaries has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
12
(dd) Margin Rules. Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company as
described in the Preliminary Offering Memorandum and the Offering Memorandum
will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(ee) Solvency. On and immediately after the Closing Date, the Company
and each of the Subsidiary Guarantors (after giving effect to the issuance of
the Securities and the other transactions related thereto as described in the
Offering Memorandum) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular date, that on such date (i) the
fair value of the assets of each of the Company and the Subsidiary Guarantors,
at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
each of the Company and the Subsidiary Guarantors will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) each of the Company and the
Subsidiary Guarantors will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each of the Company and the Subsidiary Guarantors
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted following the Closing Date.
(ff) Patronage Payments. All claims by members for cash payments of
patronage dividends, revolvements and redemptions under applicable laws,
including bankruptcy, insolvency, receivership or similar laws now or hereafter
in effect, are claims in respect of equity interests and will rank junior in
right of payment to all obligations under this Agreement, the Indenture, the
Securities and the Exchange Securities.
(gg) No Broker's Fees. Neither the Company nor any of its Subsidiaries
is a party to any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against the Company
or any of its Subsidiaries or any Initial Purchaser for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of the
Securities.
(hh) Rule 144A Eligibility. The Securities satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act, and each of the
Offering Memorandum, as of its respective date, contains or will contain all the
information that, if requested by a prospective purchaser of the Securities,
would be required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(ii) No Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale,
13
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of
the Securities in a manner that would require registration of the Securities
under the Securities Act.
(jj) No General Solicitation or Directed Selling Efforts. Assuming the
accuracy of the representations and warranties of the Initial Purchasers
contained in Section 1(b) (including Annex A hereto) and their compliance with
their agreements set forth therein, none of the Company or any of its affiliates
or any other person acting on its or their behalf has (i) solicited offers for,
or offered or sold, the Securities by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) of Regulation D or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act or (ii) engaged in any directed selling efforts within the
meaning of Regulation S under the Securities Act ("Regulation S"), and all such
persons have complied with the offering restrictions requirement of Regulation
S.
(kk) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(ll) No Stabilization. Neither the Company nor any of the Subsidiary
Guarantors has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(mm) Forward-Looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21 E of the
Exchange Act) contained in the Preliminary Offering Memorandum and the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
4. Further Agreements of the Company and the Subsidiary Guarantors. The
Company and each of the Subsidiary Guarantors jointly and severally covenant and
agree with each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
14
(b) Amendments or Supplements. Before distributing any amendment or
supplement to the Preliminary Offering Memorandum or the Offering Memorandum,
the Company will furnish to the Representative a copy of the proposed amendment
or supplement for review and will not distribute any such proposed amendment or
supplement to which the Representative reasonably objects by notice to the
Company after a reasonable period to review.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and, if requested, confirm such advice in writing, (i)
of the issuance by any governmental or regulatory authority of any order
preventing or suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum or the initiation or threatening of any proceeding for that
purpose; (ii) of the occurrence of any event at any time prior to the completion
of the initial offering of the Securities by the Initial Purchasers as a result
of which the Offering Memorandum as then amended or supplemented would include
any 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 existing when the Offering Memorandum is delivered to a purchaser,
not misleading; and (iii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and the Company will use its reasonable best efforts to prevent
the issuance of any such order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum or suspending any
such qualification of the Securities and, if issued, to obtain as soon as
possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time prior
to the completion of the initial offering of the Securities by the Initial
Purchasers (i) any event shall occur or condition shall exist as a result of
which it is necessary to amend or supplement the Offering Memorandum in order to
make the statements therein, in the light of the circumstances when the Offering
Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Offering Memorandum to comply with law, the Company
will immediately notify the Initial Purchasers thereof and forthwith prepare
and, subject to paragraph (b) above, furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented will
not, in the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser, be misleading or so that the Offering Memorandum will
comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the Initial
Purchasers to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representative shall reasonably
request and will continue such qualifications in effect so long as may be
reasonably required for the offering and resale of the Securities; provided that
neither the Company nor any of its
15
Subsidiaries shall be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or subject themselves
to taxation in respect of doing business in any jurisdiction.
(f) Clear Market. During the period from the date hereof through and
including the date that is 90 days after the Closing Date, the Company and each
of the Subsidiary Guarantors will not, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose of any debt
securities similar to the Securities issued or guaranteed by the Company or any
of the Subsidiary Guarantors.
(g) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Offering Memorandum.
(h) Supplying Information. For so long as the Securities remain
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, the Company will furnish to holders of the Securities
and prospective purchasers of the Securities designated by such holders, upon
the request of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act,
unless the Company is then subject to and in compliance with Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(i) PORTAL and DTC. The Company will assist the Initial Purchasers in
arranging for the Securities to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The Depository
Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities or the effectiveness of the Shelf Registration Statement (as defined
in the Registration Rights Agreement), as the case may be, the Company will not,
and will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Securities that have been acquired by any
of them, except for Securities purchased by the Company or any of its affiliates
and resold in a transaction registered under the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates will,
directly or through any agent, sell, offer for sale, solicit offers to buy or
otherwise negotiate in respect of, any security (as defined in the Securities
Act), that is or will be integrated with the sale of the Securities in a manner
that would require registration of the Securities under the Securities Act.
16
(l) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf will (i) solicit offers for, or offer or sell, the Securities by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.
(m) No Stabilization. In connection with the offering of the
Securities, until the Representative has notified the Company of completion of
the resale of the Securities, neither the Company nor any of the Subsidiary
Guarantors will take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
5. Conditions of Initial Purchasers' Obligations. The obligation of
each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Subsidiary
Guarantors of their respective obligations hereunder and to the following
additional conditions:
(a) Representations and Warranties. The representations and warranties
of the Company and the Subsidiary Guarantors contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; the statements of
the Company, the Subsidiary Guarantors and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date; and the Company and the Subsidiary Guarantors shall
have complied with all agreements and all conditions to be performed or
satisfied on their part hereunder at or prior to the Closing Date.
(b) No Downgrading. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock issued or guaranteed
by the Company or any of the Subsidiary Guarantors by any "nationally recognized
statistical rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review (other than an announcement with positive implications of a possible
upgrading) its rating of the Securities or of any other debt securities or
preferred stock issued or guaranteed by the Company.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(c) hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum and the effect of which in the reasonable
judgment of the Representative is so material and adverse as to make it
impracticable or inadvisable to proceed with
17
the offering, resale and delivery of the Securities on the Closing Date on the
terms and in the manner contemplated by this Agreement and the Offering
Memorandum.
(d) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an executive officer of the Company
and of each Subsidiary Guarantor who has specific knowledge of the Company's or
such Subsidiary Guarantor's financial matters and is reasonably satisfactory to
the Representative to the effect set forth in paragraphs (a) through (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, KPMG LLP shall have furnished to the Representative, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed
to the Initial Purchasers, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Preliminary Offering Memorandum and the Offering Memorandum.
(f) Opinion of Counsel for the Company. Faegre & Xxxxxx LLP, counsel
for the Company, and Xxxx Xxxxxx, Esq., General Counsel of the Company, shall
have furnished to the Representative, at the request of the Company, their
written opinion, dated the Closing Date and addressed to the Initial Purchasers,
in form and substance reasonably satisfactory to the Representative,
substantially to the effect set forth in Annexes B1 and B2 hereto, respectively.
(g) Opinion of Counsel for the Initial Purchasers. The Representative
shall have received on and as of the Closing Date an opinion of Cravath, Swaine
& Xxxxx, counsel for the Initial Purchasers, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any governmental or regulatory authority that would, as of the Closing
Date, prevent the issuance or sale of the Securities; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of
the Closing Date, prevent the issuance or sale of the Securities.
(i) Good Standing. The Representative shall have received satisfactory
evidence of the good standing of the Company and its Subsidiary Guarantors in
their respective jurisdictions of incorporation and their good standing as
foreign corporations in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of
telecommunication, from the appropriate governmental authorities of such
jurisdictions.
18
(j) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company and each of
the Subsidiary Guarantors.
(k) PORTAL and DTC. The Securities shall have been approved by the NASD
for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(l) Additional Documents. On or prior to the Closing Date, the Company
and the Subsidiary Guarantors shall have furnished to the Representative such
further certificates and documents as the Representative may reasonably request
and are customary.
(m) Bank Agreement Consents. The Company shall have received the
appropriate consents under the Bank Agreements for the sale of the Securities in
excess of $300,000,000.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and each of
the Subsidiary Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, their respective directors, officers, employees
and agents, its affiliates and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (or any amendment or supplement thereto), or caused by
any omission or alleged omission to state therein a material fact or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the Representative expressly for use
therein; provided, that with respect to any such untrue statement in or omission
from the Preliminary Offering Memorandum, the indemnity agreement contained in
this paragraph (a) shall not inure to the benefit of any Initial
19
Purchaser to the extent that the sale to the person asserting any such loss,
claim, damage or liability was an initial resale by such Initial Purchaser and
any such loss, claim, damage or liability of or with respect to such Initial
Purchaser results from the fact that both (i) a copy of the Offering Memorandum
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities to such person and (ii) the untrue statement in or
omission from such Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of non-compliance by the Company with the provisions of
Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
the Subsidiary Guarantors their respective directors, officers, employees and
agents, and each person, if any, who controls the Company or any of the
Subsidiary Guarantors within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information
relating to such Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through the Representative expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or
supplement thereto).
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 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
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other Indemnifying Person similarly notified, to assume the defense of such
proceeding and retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and
20
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary; (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded
(based upon the advice of counsel to the Indemnified Party) that there may be
legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them (based upon the advice of counsel to the Indemnified Party). It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Initial
Purchaser, its affiliates and any control persons of such Initial Purchaser
shall be designated in writing by X.X. Xxxxxx Securities Inc. and any such
separate firm for the Company, the Subsidiary Guarantors and any control persons
of the Company and the Subsidiary Guarantors shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and the Initial Purchasers on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Subsidiary Guarantors on the one hand and the Initial Purchasers on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company
21
and the Subsidiary Guarantors on the one hand and the Initial Purchasers on the
other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company and the Subsidiary
Guarantors from the sale of the Securities and the total discounts and
commissions received by the Initial Purchasers in connection therewith, as
provided in this Agreement, bear to the total gross proceeds from the sale of
the Securities under this Agreement. For purposes of this paragraph (d), each
director, officer, employee and agent of the Company and the Subsidiary
Guarantors and each person, if any, who controls the Company or any of the
Subsidiary Guarantors within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company and the Subsidiary Guarantors. The relative fault of the Company and the
Subsidiary Guarantors on the one hand and the Initial Purchasers on the other
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 information supplied by the Company or any
Subsidiary Guarantor or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company, the Subsidiary Guarantors and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the Initial Purchasers were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any out-of-pocket legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the
Securities exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such 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. The Initial Purchasers' obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
22
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by any
of the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or guaranteed by
the Company or any of the Subsidiary Guarantors shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that in the judgment of the
Representative is material and adverse and makes it impracticable or inadvisable
to proceed with the offer, sale or delivery of the Securities on the terms and
in the manner contemplated by this Agreement and the Offering Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchasers or the Company may postpone the Closing Date
for up to five full Business Days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one- eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
23
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers, the Company or the Subsidiary
Guarantors, except that the Company and each of the Subsidiary Guarantors will
continue to be liable for the payment of expenses as set forth in Section 9
hereof and except that the provisions of Section 6 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Subsidiary Guarantors
or any non-defaulting Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company and each of the Subsidiary Guarantors jointly and severally agree to
pay or cause to be paid all costs and expenses incident to the performance of
their respective obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (ii) the costs incident
to the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof to the Initial Purchasers; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses
of the Company's and the Subsidiary Guarantors' counsel and independent
accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the
Company in connection with any "road show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Initial Purchasers or (iii)
24
the Initial Purchasers decline to purchase the Securities for any reason
permitted under this Agreement, the Company and each of the Subsidiary
Guarantors jointly and severally agrees to reimburse the Initial Purchasers for
all out-of-pocket costs and expenses (including the reasonable fees and expenses
of their counsel) reasonably incurred by the Initial Purchasers in connection
with this Agreement and the offering contemplated hereby. If this Purchase
Agreement is terminated pursuant to Section 8 by reason of the default of one or
more of the Initial Purchasers, the Company shall not be obligated to reimburse
any defaulting Initial Purchaser on account of such expenses.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Company, the Subsidiary
Guarantors and any controlling persons referred to herein, the Initial
Purchasers, their respective affiliates and any controlling persons referred to
herein, and their respective successors. Nothing in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein. No purchaser of Securities from any Initial Purchaser shall be deemed to
be a successor merely by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Subsidiary
Guarantors and the Initial Purchasers contained in this Agreement or made by or
on behalf of the Company, the Subsidiary Guarantors or the Initial Purchasers
pursuant to this Agreement or any certificate delivered pursuant hereto shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company, the Subsidiary Guarantors or
the Initial Purchasers.
12. Initial Purchasers' Information. The Company, the Subsidiary
Guarantors and the Initial Purchasers acknowledge and agree that the only
information relating to any Initial Purchaser that has been furnished to the
Company in writing by any Initial Purchaser through the Representative expressly
for use in the Preliminary Offering Memorandum and the Offering Memorandum (or
any amendment or supplement thereto) consists of the following: (i) the last
paragraph on the front cover page concerning the terms of the offering by the
Initial Purchasers, and (ii) the statements concerning the Initial Purchasers
contained in the third, sixth and eleventh paragraphs under the heading "Plan of
Distribution".
13. Miscellaneous. (a) Authority of the Representative. Any action by
the Initial Purchasers hereunder may be taken by X.X. Xxxxxx Securities Inc. on
behalf of the Initial Purchasers, and any such action taken by X.X. Xxxxxx
Securities Inc. shall be binding upon the Initial Purchasers.
14. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
25
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative c/o X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000; Attention:
Xxxxxx Xxxx. Notices to the Company and the Subsidiary Guarantors shall be given
to them at Land O'Lakes, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx
00000, (fax: (000) 000-0000); Attention: Xxx Xxxxxxx (with a copy to Xxxx Xxxxxx
(fax: (000) 000-0000).
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(c) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(d) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
26
If the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided below.
Schedule 1
LAND O'LAKES, INC. LAND O'LAKES HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Vice President & Title: Vice President/
Chief Financial Officer Treasurer
ADVANCED BUSINESS CONCEPTS LOL HOLDINGS II, INC.
INTERNATIONAL, LLC
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: President Title: Treasurer
FARBEST, INC. LAND O'LAKES INTERNATIONAL
DEVELOPMENT CORPORATION
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Secretary/Treasurer Title: President
FMR, INC. L.L. OLDS SEED COMPANY
By: /s/ Xxxx Mill By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxx
Title: Secretary Title: Secretary
FORAGE GENETICS, INC. LOL POWER, LLC
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Secretary
GOLDEN VALLEY DAIRY PRODUCTS MAPLELEAF, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxx
Title: Secretary Title: Secretary/Treasurer
27
Schedule 1
MICHIGAN STATE SEED COMPANY QC INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxx Xxxxx
Title: Secretary Title: Secretary
NORTH COAST FERTILIZER II, INC. REALTY LOL, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Secretary Title: Vice President/
Secretary
NORTHWEST FOOD PRODUCTS COMPANY, INC. RESEARCH SEEDS, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Vice President/Secretary Title: Secretary
NORTHWEST FOOD PRODUCTS SEED RESEARCH, INC.
TRANSPORTATION, LLC
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxx Xxxxxx
Title: Treasurer Title: Secretary
QC HOLDINGS INC. SEEDBIOTICS, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxxxx
Title: Secretary Title: Chief Manager
QC, INC. ACS STORES, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxx XxXxxxxxxx
Title: Secretary Title: Member Representative
28
Schedule 1
ALLIANCE MILD PRODUCTS, LLC GOLDEN STATE FEEDS, LLC
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Vice President Finance Title: Assistant Secretary
Secretary/Treasurer
AMERICA'S COUNTSTORES, LLC LAND O'LAKES FARMLAND FEED LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxx XxXxxxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxx XxXxxxxxxx
Title: Assistant Secretary Title: President
AMERICA'S COUNTRY STORES MILK PRODUCTS, LLC
HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxx -----------------------------
------------------------------ Name: Xxxxxx Xxxxxx
Name: Xxxx Xxxxxx Title: Treasurer
Title: Assistant Secretary
COASTAL AG-DEVELOPMENT, INC. NUTRA-BLEND, LLC
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxxx
Title: Secretary/Treasurer Title: Assistant Secretary
DAIRY MANAGEMENT SERVICES, L.L.P. PMI AGRICULTURE, L.L.C.
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
Title: Manager Title: Member
PM NUTIRITION COMPANY, LLC PURINA XXXXX, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
29
Schedule 1
PMI NUTRITION INTERNATIONAL, LLC XXXXXX PRODUCTS, LLC
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Secretary
Confirmed and accepted as
of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By: /s/ Xxxxxx Xxxx
-----------------------------
Authorized Signatory
30
Schedule 1
Initial Purchaser Principal Amount
----------------- ----------------
X.X. Xxxxxx Securities Inc. $255,500,000
SPP Capital Partners, LLC $24,500,000
SunTrust Xxxxxxxx Capital Markets, Inc. $29,750,000
Tokyo-Mitsubishi International plc $26,250,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. $14,000,000
-----------
Total $350,000,000
31
Schedule 2
Subsidiary Guarantors
ACS Stores, L.L.C.,
Advanced Business Concepts International, LLC
Alliance Milk Products, LLC
America's Country Stores Holdings, LLC
America's Country Stores, LLC
Coastal Ag-Development, Inc.
Dairy Management Services, L.L.P.
Diamond Cross, LLC, Farbest, Inc.
FMR, Inc.
Forage Genetics, Inc.
Golden State Feeds, LLC
Golden Valley Dairy Products
L.L. Olds Seed Company
Land O'Lakes Farmland Feed LLC
Land O'Lakes Holdings, Inc.
Land O'Lakes International Development Corporation
LOL Holdings II, Inc.
LOL Power, LLC
Mapleleaf, L.L.C.
Michigan State Seed Company
Milk Products, LLC
North Coast Fertilizer II, Inc.
Northwest Food Products Company, Inc.
Northwest Food Products Transportation
LLC, Nutra-Blend, LLC
PM Nutrition Company, LLC
PMI Nutrition, LLC
PMI Agriculture, L.L.C.
PMI Nutrition International, LLC
Purina Xxxxx, LLC
QC, Inc.
QC Holdings Inc.
QC Industries, Inc.
Realty LOL, Inc.
Research Seeds, Inc.
Seed Research, Inc.
Seedbiotics, L.L.C
Xxxxxx Products, LLC
32
Schedule 3
Subsidiary Governance Interest Economic Interest
---------- ------------------- -----------------
33
Schedule 4
Material Contracts
1. Limited Liability Company Agreement by and between Farmland Industries,
Inc. and Land O'Lakes, Inc. dated as of September 1, 2000.
2. Joint Venture Agreement by and between Farmland Industries, Inc. and Land
O'Lakes, Inc. dated as of July 18, 2000.
3. Operating Agreement of Agriliance LLC among United Country Brands, LLC,
Cenex Harvest States Cooperatives, Farmland Industries, Inc. and Land
O'Lakes, Inc. dated as of January 4, 2000.
4. Joint Venture Agreement among Cenex Harvest States Cooperatives, Farmland
Industries, Inc. and Land O'Lakes, Inc. dated as of January 1, 2000.
5. Market Hog Supply Agreement by and between IBP, Inc. and Land O'Lakes, Inc.
dated as of August 17, 2000.
6. Operating Lease between Arden Hills Associates and Land O'Lakes, Inc. dated
as of May 31, 1980.
7. Ground Lease between Land O'Lakes, Inc. and Arden Hills Associates dated of
May 31, 1980.
8. License Agreement among Xxxxxxx Purina Company, Purina Xxxxx, Inc. and BP
Nutrition Limited dated as of October 1, 1986.
9. Credit Agreement among Land O'Lakes, Inc., as Borrower, the Lenders party
thereto and The Chase Manhattan Bank, as Administrative Agent dated as of
October 11, 2001.
10. Guarantee and Collateral Agreement among Land O'Lakes, Inc., the Subsidiary
Parties named therein and The Chase Manhattan Bank, as Collateral Agent
dated as of October 11, 2001.
11. Indenture dated as of November 14, 2001, among Land O'Lakes, Inc., a
Minnesota cooperative corporation, ACS Stores, L.L.C., Advanced Business
Concepts International, LLC, Alliance Milk Products, LLC, America's Country
Stores Holdings, LLC, America's Country Stores, LLC, Coastal
Ag-Development, Inc., Dairy Management Services, L.L.P., Diamond Cross,
LLC, Farbest, Inc., FMR, Inc. Forage Genetics, Inc., Golden State Feeds,
LLC, Golden Valley Dairy Products, L.L. Olds Seed Company, Land O'Lakes
Farmland Feed LLC, Land
34
O'Lakes Holdings, Inc., Land O'Lakes International Development Corporation,
LOL Holdings II, Inc., LOL Power, LLC, Mapleleaf, L.L.C, Michigan State
Seed Company, Milk Products, LLC, North Coast Fertilizer II, Inc.,
Northwest Food Products Company, Inc., Northwest Food Products
Transportation, LLC, Nutra-Blend, LLC, PM Nutrition Company, LLC, PMI
Nutrition, LLC, PMI Agriculture, L.L.C., PMI Nutrition International, LLC,
Purina Xxxxx, LLC, QC , Inc., QC Holdings Inc., QC Industries, Inc., Realty
LOL, Inc., Research Seeds, Inc., Seed Research, Inc., Seedbiotics, L.L.C,
Xxxxxx Products, LLC and U.S. Bank N.A., a national banking association, as
trustee.
12. Registration Rights Agreement dated November 14, 2001 by and among Land
O'Lakes, Inc., a Minnesota cooperative corporation, the entities listed in
Schedule I thereto, as Subsidiary Guarantors and X.X. Xxxxxx Securities
Inc., SPP Capital Partners, LLC, SunTrust Capital Markets, Inc.,
Tokyo-Mitsubishi International plc and U.S. Bancorp Xxxxx Xxxxxxx, as
Initial Purchasers.
13. Purchase Agreement by and between Land O'Lakes, Inc., a Minnesota
cooperative corporation and the Initial Purchasers listed in Schedule 1
thereto dated as of November 8, 2001.
35
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that the Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates
or any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, such Initial Purchaser
will have sent to each distributor, dealer or other person receiving a
selling concession, fee or other remuneration that purchase Securities
from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter into
any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
(v) Each Initial Purchaser, severally and not jointly,
represents, warrants and agrees that it has complied and will comply
with all applicable laws and regulations in each jurisdiction in which
it acquires, offers, sells or delivers Securities or has in its
possession or distributes the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material
relating to the Securities.
Terms used in paragraph (a) and this paragraph (b) have the meanings given to
them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and prior to the date
six months after the Closing Date will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
(d) Each Initial Purchaser acknowledges that no action has been or will
be taken by the Company that would permit a public offering of the Securities,
or possession or distribution of the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required.
EXHIBIT A
[Form of Registration Rights Agreement]
