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EXHIBIT 4.17
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ATLANTIC PREMIUM BRANDS, LTD.
REGISTRATION RIGHTS AGREEMENT
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DATED AS OF MARCH 20, 1998
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS. .....................................1
SECTION 2. DEMAND REGISTRATION RIGHTS.........................1
SECTION 3. "PIGGYBACK" REGISTRATION RIGHTS....................3
SECTION 4. REGISTRATION PROCEDURES............................4
SECTION 5. INDEMNIFICATION....................................7
SECTION 6. RULE 144...........................................8
SECTION 7. COVENANTS..........................................8
SECTION 8. TERMINATION OF REGISTRATION RIGHTS.................9
SECTION 9. SPECIFIC PERFORMANCE...............................9
SECTION 10. MISCELLANEOUS......................................9
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REGISTRATION RIGHTS AGREEMENT
This is the REGISTRATION RIGHTS AGREEMENT, dated as of March 20, 1998
("Agreement"), by and among ATLANTIC PREMIUM BRANDS, LTD. ("Company"), a
Delaware corporation, and BANC ONE CAPITAL PARTNERS, LLC, a Delaware limited
liability company ("Holder"), provided for and entered into pursuant to the
Senior Subordinated Note and Warrant Purchase Agreement dated as of the date
hereof, as amended, restated, supplemented or otherwise modified from time to
time ("Purchase Agreement") by and between Holder, as purchaser, and the Company
and certain of its subsidiaries, as sellers.
THIS AGREEMENT IS ONE OF THE "RELATED DOCUMENTS" REFERRED TO IN THE
PURCHASE AGREEMENT.
In consideration of their mutual promises set forth in this Agreement and
the Purchase Agreement, the Parties hereby agree as follows:
SECTION 1. DEFINITIONS.
All capitalized terms not otherwise defined in this Agreement shall have
the definitions set forth in the Glossary of Defined Terms attached to the
Purchase Agreement, which definitions are, to the extent applicable,
incorporated in this Agreement by reference.
SECTION 2. DEMAND REGISTRATION RIGHTS.
(a) Demand for Registration. If the Company shall receive a written request
from the Holder requesting that the Company effect the registration under the
Securities Act of all or part of the Holder's Registrable Securities ("Demand
Request"), the Company shall use its best efforts to effect such registration as
soon as practicable. Subject to the provisions of Section 2 (f), the Company may
register for sale in such registration other securities which the Company has
been requested to register by the holders thereof, provided however, that no
securities other than Registrable Securities shall be included in such
registration unless the managing underwriter shall have advised the Holder that
the inclusion of such other securities would not adversely affect such offering.
The Company shall not be required to effect more than two registrations pursuant
to requests made pursuant to this Section 2. Notwithstanding the provisions of
this Section 2, if the Company receives a Demand Request at a time when the
Company has retained an investment bank in connection with a primary offering of
Common Stock or Convertible Securities or otherwise has commenced efforts with
regard to such an offering, the Company may elect to treat the Demand Request
made under this Section 2 as a "piggyback" registration under Section 3 by
giving Notice to the Holder within 90 days of the Company's receipt of the
Demand Request.
(b) Registration Statement Form. Registrations under this Section 2 shall
be on such appropriate registration forms as shall be selected by the Company,
provided that such forms
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permit the disposition of the Registrable Securities in accordance with the
Holder's intended method or methods of disposition as specified in its request
for such registration. The Company shall include in any such registration
statement all information which the Holder shall reasonably request. Where the
Company is not eligible for use of Form S-3, the Holder shall only be entitled
to make a Demand Request with respect to a number of its Registrable Securities
which is equal to or greater than 50% of the maximum number of Warrant Shares
issuable upon exercise of the Warrant (assuming exercised on the Closing Date
with no restrictions on exercise).
(c) Effective Registration Statement. A registration requested pursuant to
this Section 2 shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become effective under the
Securities Act, (ii) if such registration is not kept effective in accordance
with Section 4, (iii) if such registration becomes the subject of any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason other than an act or omission of the
Holder, or (iv) if any conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such registration are
not satisfied for any reason other than an act or omission of the Holder.
(d) Expenses. The Company shall pay all Registration Expenses in connection
with any registration requested pursuant to this Section 2. If a request made
under Section 2 is withdrawn by the Holder promptly following disclosure to it
of information concerning the Company that is materially and adversely different
from the information known to the Holder at the time such request was made, the
Company will pay any Registration Expenses in connection with such request
without reducing the number of registrations which the Holder has a right to
request under Section 2 hereof. The Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or other
disposition of its Registrable Securities.
(e) Underwritten Offerings. If a registration pursuant to this Section 2
involves an underwritten offering, the underwriter or underwriters thereof shall
be selected by the Company. If requested by the underwriters for any
underwritten offering, the Company will enter into an underwriting agreement
with such underwriters, such agreement to be satisfactory in substance and form
to the Company and the underwriters and to contain such terms as are generally
prevailing in agreements of this type. Holder shall not be required to make any
representations and warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding the
Holder, the Holder's intended method of distribution, any other information
provided by the Holder for inclusion in the registration statement or prospectus
and any other representation required by law.
(f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 2 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing that, in its opinion, the number
of securities of any class requested to be included in such registration exceeds
the number which can be sold in (or during the time of) such offering without
delaying or jeopardizing the success of the offering (including the price per
share acceptable to the Holder), then the Company will include in such
registration (i) first, all of the Holder's Registrable
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Securities that the Company is so advised can be sold in such offering, (ii)
second, to the extent permitted by the managing underwriter, securities to be
registered by the Company for its own account and/or by other holders of
securities in such manner and amounts as the Company shall determine.
SECTION 3. "PIGGYBACK" REGISTRATION RIGHTS.
(a) Participation in Registration. If the Company at any time
proposes to register any securities under the Securities Act (other than by a
registration on Form S-4 or Form S-8 or any successor or similar form and other
than pursuant to Section 2), whether or not for sale for its own account, it
will each such time, promptly give Notice to the Holder. Upon the written
request of the Holder made within 30 days after the receipt of any such Notice
(which request shall specify the Registrable Securities intended to be disposed
of and the intended method of disposition), the Holder shall have the right to
participate in such registration on the terms and conditions thereof. If, at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to the Holder and,
thereupon, (i) in the case of a determination not to register, the Company shall
be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay any
Registration Expenses in connection therewith), without prejudice, however, to
the rights of the Holder to request that such registration be effected as a
registration under Section 2, and (ii) in the case of a determination to delay
registration, the Company shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 3 shall relieve
the Company of its obligation to effect any registration under Section 2.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 3. The Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or other
disposition of its Registrable Securities.
(c) Underwritten Offerings. If a registration pursuant to this
Section 3 involves an underwritten offering, the Company shall, if requested by
the Holder, arrange for such underwriters to include the Holder's Registrable
Securities among the securities to be distributed by such underwriters. In such
case, the Holder shall be a party to the underwriting agreement. Holder shall
not be required to make any representations and warranties to or agreements with
the Company or the underwriters other than representations, warranties or
agreements regarding the Holder, the Holder's intended method of distribution,
any other information provided by the Holder for inclusion in the registration
statement or prospectus and any other representation required by law.
(d) Priority in Registrations. If a registration pursuant to this
Section 3 involves an underwritten offering, and the managing underwriter shall
advise the Company in writing that,
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in its opinion, the number of securities of any class requested to be included
in such registration exceeds the number which can be sold in (or during the time
of) such offering without delaying or jeopardizing the success of the offering,
then the Company will include in such registration, to the extent to which the
Company is advised can be sold in such offering, securities as follows:
(i) if such registration is for the account of the
Company, first, all securities proposed by the Company
to be sold for its own account, second, such
Registrable Securities requested by the Holder to be
included in such registration, and third, all other
securities of the Company requested to be included in
such registration in such amount and in such manner as
the Company shall determine;
(ii) if such registration is not for the account of the
Company, first, such Registrable Securities requested
to be included in such registration and all other
securities proposed to be sold by other holders shall
be included in such registration pro rata on the basis
of the number of shares so proposed to be sold, and
second all securities proposed by the Company to be
sold for its own account.
SECTION 4. REGISTRATION PROCEDURES.
If the Company is required to effect the registration of any Registrable
Securities as provided herein, the Company shall proceed in the following
manner:
(a) prepare and as expeditiously as possible file (and in any event
within 90 days of receipt of Holder's request under Section 2) with the
Commission the registration statement to effect such registration and use its
best efforts to cause such Registration Statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of (i) 90 days after the date such registration statement is declared
effective by the Commission, or (ii) such time as all Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the Holder;
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(c) furnish to Holder such number of prospectuses (including
preliminary prospectuses) and copies of each amendment and supplement thereto
and such other documents as Holder may reasonably request in order to facilitate
the disposition of the Registrable Securities;
(d) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Holder shall reasonably request, to keep
such registration or qualification in effect for so long as such registration
statement remains in effect, and take any other action which may be reasonably
necessary or desirable to enable the Holder to consummate the disposition of its
Registrable Securities in such jurisdictions in accordance with the intended
method of disposition, provided, however, that the Company shall not be required
to qualify to do business, to consent to general service of process, or to
register as a broker or dealer in any such jurisdiction;
(e) enter into and perform its obligations under any underwriting
or placement agreement, and take all actions in connection therewith in order to
expedite or facilitate the disposition of the Registrable Securities;
(f) notify the Holder in writing of (i) any stop order or the
commencement of any proceedings for that purpose, (ii) any suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
commencement of any proceedings for that purpose, or (iii) any notification
received by the Company regarding the necessity or desirability of filing any
supplement or amendment to the registration statement;
(g) in any underwritten offering, furnish to the Holder (i) an
opinion of counsel for the Company, dated the effective date of such
registration statement, in form and substance as is customarily given to
underwriters, and (ii) a comfort letter, dated the effective date of such
registration statement, signed by the Company's independent public accountants
in form and substance as is customarily given to underwriters, in each case
addressed to the underwriters and the Holder;
(h) notify Holder upon discovery of the happening of any event as a
result of which the prospectus included in such registration statement includes
an untrue statement of any material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, or any other event
that would cause the registration statement to no longer be current, and at the
request of the Holder, as soon as practicable, prepare, file and furnish to
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus which may be required on account of such event and use its
commercially reasonable efforts to cause such supplement or amendment to become
effective as soon as practicable;
(i) cause to be maintained a transfer agent for its securities from
and after a date not later than the effective date of such registration
statement;
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(j) use its best efforts to list all Registrable Securities covered
by such registration statement on any securities exchange or interdealer
quotation system on which any of the Registrable Securities is then listed; and
(k) enter into such agreements and take such other actions as the
Holder shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
The Company may require the Holder to furnish the Company such information
regarding the Holder and the distribution of the Registrable Securities as the
Company may from time to time reasonably request in writing.
Upon receipt of any Notice from the Company of the happening of any
circumstance or event of the kind described in Section 4(h), the Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
registration statement until it receives copies of the supplemented or amended
prospectus or other notification that such disposition may be resumed, and, if
so directed by the Company, will destroy all copies, other than permanent file
copies, then in Holder's possession of the prospectus relating to such
Registrable Securities. The Company will use its best efforts to effect such
amendment or supplement as promptly as possible.
SECTION 5. INDEMNIFICATION.
(a) Indemnification by the Company. In the event of any
registration pursuant to Section 2 or 3, the Company will, and hereby does,
indemnify and hold harmless the Holder, its directors, partners, members and
officers, any underwriter acting on behalf of the Holder and each other Person,
if any, who controls any such Person within the meaning of the Securities Act
(collectively, "Holder Indemnified Persons"), against any losses, claims,
damages, expenses (including legal fees and expenses) or liabilities, joint or
several, to which any one of them may become subject under the Securities Act or
otherwise, provided however, that the Company shall not be so liable to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon (i) the Company's reliance upon written information furnished to
the Company by any Holder Indemnified Person for use in the registration
statement, (ii) any Holder Indemnified Person's failure to provide a copy of the
final prospectus, as the same may be then supplemented or amended, to the
purchaser at or prior to the written confirmation of the sale of Registrable
Securities, and (iii) any Holder Indemnified Person's delivery of a copy of a
registration statement or prospectus, or any amendments or supplements thereto,
with respect to which the Company has given Notice to the Holder pursuant to
Section 4(h) and the Holder Indemnified Person has not relied on such
registration statement or prospectus prior to the receipt of such Notice. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Holder or other Person and shall survive the
transfer of the Registrable Securities by the Holder.
(b) Indemnification by the Holder. In the event of any registration
pursuant to Section 2 or 3, the Holder will, and hereby does, indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section 5) the Company, each director
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and officer of the Company and any underwriter acting on behalf of the Company
and each other Person, if any, who controls any such Person within the meaning
of the Securities Act (collectively, "Company Indemnified Persons"), against any
losses, claims, damages, expenses (including legal fees and expenses) or
liabilities, joint or several, to which any one of them may become subject under
the Securities Act or otherwise, to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon the Company's
reliance upon written information furnished to the Company by any Holder
Indemnified Person for use in the registration statement. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any other Company Indemnified Person and shall survive
the transfer of such Registrable Securities by the Holder. Notwithstanding the
foregoing, the maximum liability of the Holder for any indemnification under
this Section 5(b) shall be the aggregate net proceeds received by the Holder
from the sale of Registrable Securities pursuant to such registration statement.
(c) Procedures for Claims. Promptly after receipt of notice of the
commencement of any action or proceeding involving a claim referred to in this
Section 5, an indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give Notice to the indemnifying party of the
commencement of such action. Failure to give prompt Notice shall not relieve the
indemnifying party of its obligation under this Section 5, except to the extent
that the indemnifying party is actually prejudiced by such failure. The
indemnifying party shall be entitled to participate in and to assume the defense
of such action at its expense, jointly with any other indemnifying party, with
counsel reasonably satisfactory to the indemnified party, provided however, that
an indemnified party shall have the right to retain its own counsel, with fees
and expenses thereof to be paid by the indemnifying party, if in such
indemnified party's reasonable judgment an actual or potential conflict of
interest between such indemnified and indemnifying party may exist in respect of
such claim. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof a release from all liability by the
plaintiff to the indemnified party. The amount paid or payable by an
indemnifying party shall include any legal or other expenses reasonably incurred
by the indemnified party in connection with the investigation or defense of any
such action or claim.
SECTION 6. RULE 144. If the Company shall have filed a registration
statement, the Company will file the reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Commission thereunder. The Company shall, upon the request of the
Holder, provide the Holder and any institutional investor designated
by such Holder such financial and other information as the Holder may reasonably
determine to be necessary in order to permit the Holder's compliance with Rule
144A under the Securities Act in connection with the resale of any Registrable
Securities, except at such time as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act.
SECTION 7. COVENANTS. The Company covenants and agrees that (a) it will not
effect or permit to occur any combination or subdivision of its securities which
would adversely affect the ability of the Holder to include its Registrable
Securities in any registration contemplated herein or
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the marketability of such Registrable Securities; and (b) it shall not
participate in or cooperate with any offering of its securities, either directly
or indirectly, by any shareholder of the Company under Regulation S of the
Securities Act.
SECTION 8. TERMINATION OF REGISTRATION RIGHTS. The registration rights
granted pursuant to this Agreement shall terminate on the earlier to occur of
(i) such time as neither the Holder nor any Affiliate of the Holder owns
Registrable Securities representing at least 1% of the Outstanding Common Shares
of the Company, or (ii) the tenth (10th) anniversary of the Closing Date.
SECTION 9. SPECIFIC PERFORMANCE. The Parties recognize and agree that money
damages may be insufficient to compensate the Holder for breaches by the Company
of terms hereof and, consequently, that the equitable remedy of specific
performance of the terms hereof will be available in the event of any such
breach
SECTION 10. MISCELLANEOUS. The provisions of Section 12 of the Purchase
Agreement are applicable to this Agreement and are incorporated by reference in
this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
COMPANY: HOLDER:
ATLANTIC PREMIUM BRANDS, LTD. BANC ONE CAPITAL PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Banc One Capital Partners Holdings, Ltd.,
-------------------------- Manager
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ By: BOCP Holdings Corporation, Manager
Title: Chairman
----------------------- By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Signer
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