Registration Rights Agreement - Jan. 31, 2001

Exhibit 10.42


REGISTRATION RIGHTS AGREEMENT


This Registration Rights Agreement (this "Agreement") is made as of January 31, 2001 by and among Aurora Foods Inc., a Delaware corporation (the "Company") and the Holders listed on Schedule A hereto:


Recitals
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This Agreement is made in connection with the Consent Solicitation (as defined herein) by the Company dated as of August 31, 2000 from holders of Notes (as defined herein) and the issuance of Consent Shares (as defined herein) to holders of Notes providing valid consents in connection therewith.


Agreement
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The parties hereto hereby agree as follows:


1. DEFINITIONS.


1.1. Definitions. Certain terms are used in this Agreement as specifically defined herein. These definitions are set forth or referred to in Section 4 hereof.


2. REGISTRATION RIGHTS. The Company will perform and comply, and each of the other parties hereto will perform and comply, with such of the following provisions as are applicable to such party.


2.1. Demand Registration Rights.
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2.1.1. General. From and after the first anniversary of the Effective Date (as defined herein) any of the Holders of Registrable Securities (the "Initiating Holders") (but not on more than one occasion for all Holders per annum), by notice to the Company specifying the intended method or methods of disposition, may request that the Company effect the registration under the Securities Act for a Public Offering of all of the Registrable Securities held by such Initiating Holders. Within 15 days after receipt by the Company of any request for registration pursuant to this Section 2.1, the Company shall give written notice of such requested registration to all Holders, and the Company will then use its best efforts to effect the registration under the Securities Act of (i) the Registrable Securities which the Company has been requested to register by such Initiating Holders, (ii) all other Registrable Securities which the Company has been requested to register by the Holders thereof by written request given to the Company within 15 days after the Company has given such written notice (which request shall specify the intended method of disposition of such Registrable Securities) and (iii) any other securities which the Company is required to include in such registration, all to the extent required to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities which the Company has been so requested to register; provided, however, that the Company shall not be obligated to take any action to effect any such registration pursuant to this


Section 2.1.1 if the Company shall have promptly furnished to the Initiating Holders and such other holders of Registrable Securities which the Company has been requested to register a certificate, signed by the Chief Executive Officer of the Company, stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company or its shareholders for such registration statement to be filed at the date filing would have been required, in which case the Company shall have an additional period of not more than 60 days within which to file such registration statement; provided, however, that the certificate set forth in this clause may not be given to the same Initiating Holders more than once in any nine month period; and provided, further, however, that with respect to a request made pursuant to this Section 2.1.1, the Company shall remain obligated to effect any request made in accordance therewith upon expiration of such additional period. If the Company shall so postpone the filing of a registration statement, the Initiating Holders shall within 10 days after receipt of the notice of postponement advise the Company in writing whether or not they have determined to withdraw their request for registration. Failure by the Initiating Holders to timely notify the Company of their determination shall for all purposes be treated as a withdrawal of the request for registration. In the event of a withdrawal, such request for registration shall not be deemed exercised for purposes of determining whether such Holders still have the right to make a request for registration pursuant to this Section 2.1. Notwithstanding anything to the contrary herein, on and after the date on which all of any Holder's Registrable Securities are, according to the advice of the Company's counsel, such advice to be reasonably acceptable to the Holder's counsel, saleable in a single transaction under Rule 144 under the Securities Act, the Company shall have no further obligation to register such Holder's securities.


2.1.2. Form. Each registration requested pursuant to this Section 2.1 shall be effected by the filing of a registration statement on Form S-3, if available, or if not available, on Form S-1 (or any other form which includes substantially the same information as would be required to be included in a registration statement on such forms as currently constituted), unless the use of a different form has been agreed to in writing by holders of at least a majority of the Registrable Securities to be included in the proposed registration statement in question (the "Majority Participating Holders").


2.1.3. Payment of Expenses. The Company shall pay all reasonable out- of-pocket expenses (including the reasonable fees of only one counsel for all Holders of Registrable Securities participating therein) of Holders of Registrable Securities incurred in connection with each registration of Registrable Securities requested pursuant to this Section 2.1, other than underwriting discounts and commissions, if any, and applicable transfer taxes, if any.


2.1.4. Effective Registration Statement. A registration requested pursuant to this Section 2.1 shall not be deemed to have been effected unless it is declared effective by the Commission and remains effective for the period specified in Section 2.3.1.


2.1.5. Pro Rata Allocation. If the Company determines, based on consultation with the managing underwriters or, in an offering which is not underwritten, with an investment banker, that the number of securities to be sold in the offering requested pursuant to this Section 2.1 should be limited due to market conditions or otherwise, Holders of Registrable Securities proposing to sell their securities in such registration shall share pro rata in the number of securities being offered (as determined by the Company in consultation with the managing


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underwriters or investment banker, as the case may be) and registered for their account, such sharing to be based on the number of Registrable Securities as to which registration was requested by such Holders. All other securities requested to be included in such registration that are not Registrable Securities shall be excluded before the exclusion of any Registrable Securities from such registration in the event such a limitation on the number of shares is required.


2.1.6. Underwriting Agreement. In the event of an underwritten offering, if requested by the underwriters, the Company together with the holders of Registrable Securities proposing to distribute their securities through such underwriting will enter into an underwriting agreement with such underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the Majority Participating Holders and to the underwriters and to contain such representations and warranties by the Company and the selling stockholders and such other terms and provisions as are customarily contained in agreements of this type, including, but not limited to, indemnities to the effect and to the extent provided in Section 2.4.1, provisions for the delivery of officers' certificates, lock-up agreements and opinions of counsel and accountants' "comfort" letters. If any condition to the obligations under such underwriting agreement are not met or waived, and such failure to be met or waived is not attributable to the fault of the Holders requesting a demand registration pursuant to Section 2.1, such request for registration shall not be deemed exercised for purposes of determining whether such registration has been effected for purposes of Section 2.1.


2.2. Piggyback Registration Rights.
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2.2.1. Piggyback Registration.
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2.2.1.1. General. Each time the Company proposes to register any of its Common Stock under the Securities Act, (other than pursuant to Section 2.1 or pursuant to those registrations described in Section 2.2.1.2), whether or not for its own account, for sale in a Public Offering, the Company will give notice pursuant to Section 5.2 hereof to all holders of Registrable Securities of its intention to do so. Any such Holder may, by written response delivered to the Company within 15 days after the effectiveness of such notice, request that all of the Registrable Securities held by such Holder be included in such registration. The Company thereupon will use its reasonable best efforts to cause to be included in such registration under the Securities Act all shares of Registrable Securities which the Company has been so requested to register by such Holders, to the extent required to permit the disposition (in accordance with the methods to be used by the Company or other holders of shares of Common Stock in such Public Offering) of the Registrable Securities to be so registered. No registration of Registrable Securities effected under this Section 2.2 shall relieve the Company of any of its obligations to effect registrations of Registrable Securities pursuant to Section 2.1 hereof.


2.2.1.2. Excluded Transactions. The Company shall not be obligated to effect any registration of Registrable Securities under this Section 2.2 incidental to the registration of any of its securities in connection with (i) any Public Offering relating to employee benefit plans or dividend reinvestment plans; or (ii) any Public Offering relating to the


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acquisition or merger after the date hereof by or of the Company of, by or with any other business.


2.2.2. Payment of Expenses. The Company shall pay all reasonable out-of-pocket expenses (including the reasonable fees of only one counsel for all Holders of Registrable Securities participating therein) of Holders of Registrable Securities incurred in connection with each registration of Registrable Securities requested pursuant to this Section 2.2, other than underwriting discounts and commissions, if any, and applicable transfer taxes, if any.


2.2.3. Underwriting Agreement. Holders of Registrable Securities participating in any Public Offering pursuant to this Section 2.2 shall take all such actions and execute all such documents and instruments that are reasonably requested by the Company to effect the sale of their shares in such Public Offering, including, without limitation, being parties to the underwriting agreement entered into by the Company, such underwriters and any other selling shareholders in connection therewith, such agreement to be reasonably satisfactory in substance and form to the Majority Participating Holders and to the underwriters and to contain such representations and warranties by the Company and the selling stockholders and such other terms and provisions as are customarily contained in agreements of this type, including, but not limited to, indemnities to the effect and to the extent provided in Section 2.4.1, provisions for the delivery of officers' certificates, lock-up agreements and opinions of counsel and accountants' "comfort" letters.


2.2.4. Underwriter's Cutback. In connection with any underwritten offering pursuant to Section 2.2 hereof, the underwriter may determine that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation of the number of shares to be underwritten. Notwithstanding any contrary provision of this Section 2 and subject to the terms of this Section 2.2.4, the underwriter may limit the number of shares which would otherwise be included in such registration by excluding any or all Registrable Securities from such registration (it being understood that the number of shares which the Company seeks to have registered for its own account in such registration shall not be subject to exclusion, in whole or in part, under this Section 2.2.4). Upon receipt of notice from the underwriter of the need to reduce the number of shares to be included in the registration, the Company shall so advise all holders of the Company's securities that would otherwise be registered and underwritten pursuant hereto, and the number of shares of such securities, including Registrable Securities, that may be included in the registration shall be allocated in the following manner: Registrable Securities requested to be included in such registration by Holders thereof shall be allocated among the Holders of Registrable Securities in proportion, as nearly as practicable, to the respective amounts of Registrable Securities which each such holder requested be in such registration under Section 2.2 provided, that the provisions of Section 6.3.1 of the Securityholders Agreement, dated as of April 8, 1998, among the Company and the signatories thereto, and as amended by the Amendment to Securityholders Agreement, dated as of September 19, 2000, shall first be applied to such allocation. No securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any holder of Registrable Securities disapproves of the terms of the underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter. The Registrable Securities so withdrawn shall also be withdrawn from registration.


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2.3. Registration Procedures.
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2.3.1. General. If and in each case when the Company is required to use its best efforts or reasonable best efforts to effect a registration of any Registrable Securities as provided in this Section 2, the Company shall take appropriate and customary actions in furtherance thereof, including, without limitation: (i) promptly, and in any event within 60 days after requested, filing with the Commission a registration statement with respect to such securities, cooperating with the underwriters in connection with any required filings with the NASD and using its best efforts to cause such registration statement to become effective; (ii) preparing and filing with the Commission such amendments and supplements to such registration statements and the prospectus used in connection therewith and such other documents as may be necessary to comply with the Securities Act and, with respect to the disposition of all Registrable Securities and other securities, if any, covered by such registration statement, keeping such registration statement effective for a period not to exceed 270 days from the date of effectiveness or such earlier time as the Registrable Securities covered by such registration statement shall have been disposed of in accordance with the intended method of distribution therefor; (iii) using its best efforts to register or qualify such Registrable Securities under the state securities or "blue sky" laws of such jurisdictions as each seller shall reasonably request, keep such registration or qualification in effect for the shorter of so long as such registration statement remains in effect or such registration or qualification is required and do any and all other acts and things which may be necessary or advisable to enable each seller to consummate the disposition in such jurisdictions of its Registrable Securities covered by such registration statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it would not otherwise be so subject; (iv) using its best efforts to obtain all legal opinions, auditors' consents and comfort letters and experts' cooperation as may be required, including furnishing to each seller of such Registrable Securities a copy of (X) an opinion of counsel for the Company and (Y) a "cold comfort" letter signed by the independent public accountants who have certified the financial statements of the Company included in such registration statement, each covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities; (v) (a) immediately notifying each Holder of Registrable Securities covered by such registration statement if such registration statement, at the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, upon discovery by the Company of such material misstatement or omission, and, as promptly as practicable, preparing and filing with the Commission a post-effective amendment to such registration statement and using its best efforts to cause such post-effective amendment to become effective such that such registration statement, as so amended, shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (b) immediately notifying each Holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, if the Prospectus


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included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, upon discovery by the Company of such material misstatement or omission or upon discovery by the Company of the happening of any event as a result of which the Company believes there would be a material misstatement or omission and preparing and furnishing to such Holder, upon request of such Holder, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; (vi) furnishing to each seller of Registrable Securities, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and documents required to be filed therewith (other than those filed on a confidential basis), except that the Company shall not be obligated to furnish any such seller with more than two copies of such exhibits other than incorporated documents), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), each in conformity with the requirements of the Securities Act, such documents incorporated by reference in such registration statement or prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of its Registrable Securities covered by such registration statement; (vii) furnishing to counsel (if any) selected by the Majority Participating Holders copies of all documents proposed to be filed with the Commission in connection with such registration; (viii) otherwise using its best efforts to comply with the Securities Act, the Exchange Act and any other applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement of the Company covering the period of at least 12 months after the effective date of such registration statement, which earnings statement shall satisfy Section 11(a) of the Securities Act and any applicable regulations thereunder, including Rule 158; (ix) using its best efforts (a) to list such Registrable Securities on each securities exchange on which any equity security of the Company is then listed, and if such securities are not already so listed, list them on a national securities exchange or if such listing is not practicable or the Board of Directors of the Company determines that quotation as a NASDAQ National Market System security is preferable, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act, and (b) providing and causing to be maintained a transfer agent and registrar for such Registrable Securities not later than the effective date of such registration statement; (x) notifying each Holder of any Registrable Securities covered by such registration statement (a) when such registration statement, or any post-effective amendment to such registration statement, shall have become effective, or any amendment of or supplement to the prospectus used in connection therewith shall have be ...