EXHIBIT 10.5(b)
REGISTRATION RIGHTS AGREEMENT
This registration rights agreement (the "Agreement") is entered into
as of this 21st day of November, 1997, between Einstein/Noah Bagel Corp., a
Delaware corporation (the "Company"), and GECFS, Inc. ("GECC").
SECTION 1. CERTAIN DEFINITIONS.
(a) "Business Day" means any day on which the Nasdaq National Market (or any
other domestic stock exchange on which the Common Stock is listed) is open
for trading.
(b) "Closing Date" means November 21, 1997.
(c) "Commission" means the Securities and Exchange Commission or any successor
agency thereto.
(d) "Common Stock" means the common stock, $.01 par value per share, of the
Company.
(e) "Eligible Securities" means those restricted shares of the Company's common
stock, $.01 par value, issuable upon exercise of that warrant certificate
issued to GECC of even date herewith (the "Warrant") or any warrants
derived from such Warrant. Securities shall cease to be Eligible
Securities for all purposes of this Agreement when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) such
securities are permitted to be sold without limitation or restriction
pursuant to Rule 144(k) (or any successor provision to such Rule) under the
Securities Act, (iii) such securities shall have been otherwise transferred
pursuant to an applicable exemption under the Securities Act, new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and such securities shall
be freely transferable to the public without registration under the
Securities Act, or (iv) a written opinion of counsel of the Company
addressed to the Stockholder owning such securities to the effect that such
securities may be sold without registration under the Securities Act has
been delivered to such Stockholder.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
(g) "Person" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or
other form of business organization, whether or not regarded as a legal
entity under applicable law, a trust (inter vivos or testamentary), an
estate of a deceased, insane or incompetent person, a quasi-governmental
entity, a government or any agency, authority, political subdivision or
other instrumentality thereof, or any other entity.
(h) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with the Commission a
registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration
statement.
(i) "Registration Expenses" shall mean all expenses, other than Selling
Expenses (as defined below), incurred by the Company in complying with this
Agreement, including, without limitation, all registration, qualification
and filing fees, printing expenses, escrow fees, fees and disbursements of
counsel, accountants and other experts employed by the Company, blue sky
fees and expenses and the expense of any special audits incident to or
required by any such registration.
(j) "Resale Registration" shall have the meaning set forth in Section 2 hereof.
(k) "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall
be in effect at the relevant time.
(l) "Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities
registered on behalf of the Stockholders and all fees and disbursements of
counsel for the Stockholders.
(m) "Selling Stockholder" means any Stockholder selling Eligible Securities
registered pursuant to Section 2 hereof.
(n) "Stockholder" means GECC and any person holding Eligible Securities to whom
the rights under this Agreement have been transferred in accordance with
Section 6(b) hereof.
SECTION 2. RESALE REGISTRATION.
(a) Resale Registration. The Company hereby agrees, unless otherwise
instructed by GECC, to file under the Securities Act, within the 12-month period
immediately following the Closing Date (such period, subject to extension as
provided below, the "Resale Registration Period"), a registration statement on
Form S-1 or any similar long-form registration statement or Form S-3 or any
similar short-form registration statement, at its election, to register all
Eligible Securities, whether in connection with a primary registration of its
Common Stock or otherwise ("Resale Registration"), and shall use its reasonable
best efforts to cause such Resale Registration to be declared effective by the
Commission. The Company shall have the right, subject to consultation with
GECC, to select the timing of the Resale Registration within the Resale
Registration Period. The Company shall have the right to include in any such
Resale Registration any other securities of the Company, including, but not
limited to, any securities of the Company (the "Earlier Securities") desired to
be registered by persons or entities also having registration rights from the
Company. The Resale Registration Period shall be extended for a period of six
additional months if the Company shall have been advised in writing by a
nationally recognized independent investment banking firm that, in such firm's
opinion, the filing of a registration statement for the Resale Registration
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immediately prior to the end of the original Resale Registration Period might
materially and adversely affect the Company (including the price of the Common
Stock)
(b) Restrictions on Resale Registration. The Company may postpone for up
to three months the filing or effectiveness of a registration statement for a
Resale Registration if the Company believes that such Resale Registration would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any of its subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer or similar transaction; provided, however, that immediately
following such postponement, the Company shall file or request effectiveness of
the Resale Registration notwithstanding the expiration of the Resale
Registration Period.
(c) Registration Expenses. The Company (as between the Company and the
Selling Stockholders) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Section 2. The
Selling Stockholders (as between the Selling Stockholders and the Company) shall
be responsible for all Selling Expenses relating to Eligible Securities
registered on behalf of the Selling Stockholders.
(d) Black-Out Period. The Company may, by notice given to all Selling
Stockholders under the Resale Registration, require such Selling Stockholders
not to make any sale of Eligible Securities pursuant to the registration
statement for the Resale Registration if, in the opinion of the Company, (x)
securities laws applicable to such sale would require the Company to disclose
material non-public information ("Non-Public Information") and (y) the
disclosure of such Non-Public Information would adversely affect the Company.
In the event the sales under the Resale Registration are deferred because of the
existence of Non-Public Information, the Company will notify the Selling
Stockholders promptly upon such Non-Public Information being included by the
Company in a filing with the SEC, being otherwise disclosed to the public (other
than through the actions of a Selling Stockholder) or ceasing to be material to
the Company, and upon such notice being given by the Company, the Selling
Stockholders shall again be entitled to sell Eligible Securities pursuant to the
Resale Registration.
SECTION 3. REGISTRATION PROCEDURES.
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(a) Registration and Qualification.
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(i) The Company shall prepare and file with the Commission such
amendments and supplements to any registration statement registering
Eligible Securities and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective, and comply with
the provisions of the Securities Act with respect thereto and the
disposition of all Eligible Securities, until the earlier of such time as
all of such Eligible Securities have been disposed of in accordance with
the intended methods of disposition by the Selling Stockholders as set
forth in the registration statement or the expiration of two years after
the date such registration statement has become effective; provided,
however, that in the event that the Company shall notify the Selling
Stockholders of the
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happening of any event which would cause the prospectus included as part of
such registration statement, as then in effect, to include an untrue
statement of a material fact or omit to state any 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, such Selling
Stockholders shall thereafter sell no shares under such registration
statement until the Company has filed an amendment or supplement to the
prospectus to cause the prospectus not to include an untrue statement of a
material fact or omit to state any material facts required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and, subject to
Section 2(e) hereof, the Company shall be obligated to promptly amend or
supplement the prospectus so that the prospectus does not include an untrue
statement of a material fact or omit to state any 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;
(ii) The Company will use its reasonable best efforts to register or
qualify the Eligible Securities under the blue sky laws of such
jurisdictions as any Selling Stockholder reasonably requests and to do any
and all other acts which may be reasonably necessary to enable such Selling
Stockholder to consummate the disposition in such jurisdictions of the
Eligible Securities owned by such Selling Stockholder (provided that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
(iii) The Company may require the Selling Stockholders to furnish to
the Company such information regarding the Selling Stockholders and the
distribution of the Eligible Securities as the Company may from time to
time reasonably request in writing and as shall be required by law or by
the Commission in connection with any registration;
(iv) The Company shall provide to each Selling Stockholder such number
of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Selling
Stockholder may reasonably request in order to facilitate the disposition
of the Eligible Securities registered pursuant to such registration
statement; and
(v) The Company will provide a transfer agent and registrar for all
Eligible Securities not later than the effective date of the registration
statement, and use its reasonable best efforts to cause the Eligible
Securities to be listed on each securities exchange or national market
system on which the Common Stock is then listed.
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(b) Underwriting. In the event that any registration pursuant to Section 2
hereof shall involve, in whole or in part, an underwritten offering, the Company
may require Eligible Securities to be included in such underwriting on the same
terms and conditions as shall be applicable to the Common Stock being sold
through underwriters under such registration. In such case, the holders of
Eligible Securities on whose behalf Eligible Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement. Such
agreement shall contain such representations and warranties by the Selling
Stockholders and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Section 4. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Selling Stockholders.
SECTION 4. INDEMNIFICATION.
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(a) The Company agrees to indemnify, to the extent permitted by law, each
Selling Stockholder, and each Person, if any, who controls such Selling
Stockholder within the meaning of the Securities Act or the Exchange Act,
against any and all losses, claims, damages or liabilities to which such Selling
Stockholder may become subject by reason of its offer and sale of Eligible
Securities pursuant to the registration statement, and to reimburse such Selling
Stockholder for any reasonable legal or other expenses actually and reasonably
incurred in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, liabilities or actions arise, directly
or indirectly, out of, or are based upon:
(i) any untrue statement of a material fact or any alleged untrue
statement of a material fact contained in or incorporated by reference in
the registration statement or any post-effective amendment thereto, or the
omission or alleged omission to state therein 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;
(ii) any untrue statement of a material fact or any alleged untrue
statement of a material fact contained or incorporated by reference in the
prospectus (as amended or supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), if used within the
period during which the Company is required to keep the registration
statement in which such prospectus is contained current pursuant to the
terms of this Agreement, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading; or
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(iii) any violation by the Company of any federal, state or common
law rule or regulation applicable to the Company in connection with the
Resale Registration;
provided, however, that the indemnification agreement contained herein shall not
apply to losses, claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or any such omission or alleged omission,
if such statement or omission was made in reliance upon, and in conformity with,
information furnished to the Company by or on behalf of the Selling Stockholders
expressly for use in connection with the preparation of the registration
statement or any prospectus contained in the registration statement or any such
amendment or supplement thereto.
(b) The Selling Stockholders shall (in the same manner and to the same
extent as set forth in Section 4(a)), severally indemnify, to the extent
permitted by law, the Company, each Person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, and their
directors and officers, if such statement or omission was made in reliance upon
and in conformity with information furnished to the Company by or on behalf of
any Selling Stockholder expressly for use in connection with the preparation of
the registration statement or any amendment or supplement thereto; provided,
however, that each Selling Stockholder's obligations hereunder shall be limited
to an amount equal to the net proceeds to such Selling Stockholder of the
Eligible Securities sold pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided, however, that any failure by a person entitled
to indemnification hereunder to give such prompt written notice shall not
adversely affect such person's rights hereunder unless such failure prejudices
the rights of the indemnifying party hereunder) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. The indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of such counsel a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
SECTION 5. REGISTRATION RIGHTS OF OTHER SECURITY HOLDERS. The
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registration rights granted pursuant to this Agreement are granted subject to
any and all registration rights granted by the Company to holders of its
securities prior to the date hereof, and no provision herein shall be
interpreted so as to be superior to, inconsistent with, or adversely effect, any
such previously granted registration rights.
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SECTION 6. MISCELLANEOUS.
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(a) Amendments. The provisions of this Agreement may be amended only upon
the written consent of the Company and GECC, or, in the event there is more than
one holder of Eligible Securities, only upon the written consent of the Company
and the holders of a majority of the Eligible Securities.
(b) Assignment. This Agreement is binding upon the parties hereto and
their respective successors and assigns. GECC may not assign its rights
hereunder, except in accordance with the terms of the Warrant without the prior
written consent of the Company in its sole discretion, provided that GECC may
transfer rights hereunder to any transferee to which transfer is made under and
in accordance with the Warrant or any such transferee to which transfer is made
under and in accordance with any warrant derived from the Warrant. Such
transferee may not further transfer any rights hereunder except in accordance
with the terms of the Warrant without the prior written consent of the Company
in its sole discretion. Transfer of the Eligible Securities shall not, in
itself, be deemed an assignment of rights hereunder.
(c) Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together will
constitute one and the same agreement.
(d) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered if delivered by hand or by electronic
transmission. If sent by reliable overnight delivery service and addressed as
follows, or at such other addresses as the parties hereto may from time to time
designate in writing, such notices, requests, demands and other communications
shall be deemed delivered upon the earlier of actual receipt or two business
days after being so duly sent.
If to the Company:
Einstein/Noah Bagel Corp.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to GECC:
General Electric Capital Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Region Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other holder of Eligible Securities:
At such address as such holder notifies the Company in
writing from time to time.
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(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement on the day and year first above written.
EINSTEIN/NOAH BAGEL CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Senior Vice President
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GECFS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Senior Credit Analyst
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