EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
Dated July 15, 1998
among
BOSTON CHICKEN, INC.
BCI ACQUISITION SUB, L.L.C.
and
BC EQUITY FUNDING, L.L.C.
MARKET PARTNERS, L.L.C.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into on July 15, 1998, among BOSTON CHICKEN, INC., a Delaware
corporation (the "Company"), BCI ACQUISITION SUB, L.L.C., a Delaware limited
liability company and a wholly owned subsidiary of the Company ("BCI Sub"), BC
EQUITY FUNDING, L.L.C., a Delaware limited liability company ("BCEF"), and
MARKET PARTNERS, L.L.C., a Delaware limited liability company ("Market
Partners").
This Agreement is made pursuant to the Agreement and Plan of Merger
dated March 16, 1998, between the Company, BCI Sub, BCEF and Market Partners
(the "Merger Agreement"), which provides for the merger (the "Merger") of BCEF
and Market Partners with and into BCI Sub, with BCI Sub as the surviving
corporation. As a result of the Merger, holders of limited liability company
interests in BCEF or Market Partners (the "Holders") will receive, in the
aggregate, (i) $126.8 million aggregate liquidation preference 10% Series A
Exchangeable Preferred Stock of the Company (the "Preferred Stock"), (ii)
3,500,000 shares of Common Stock, par value $0.01 per share, of the Company (the
"Common Stock") and (iii) $10,000,000 in cash (to be divided among only those
Holders who are not BCI Insiders). As part of the consideration provided for in
the Merger Agreement and, with respect only to Holders who have not previously
executed and delivered to BCI a Letter of Transmittal containing the release set
forth therein, in consideration of such Holders providing the Release
substantially in the form set forth in the Letter of Transmittal, the Company
has agreed to provide to the Holders who are not BCI Insiders the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Merger Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"BCEF" shall have the meaning set forth in the preamble to this
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Agreement and shall also include BCEF's successors.
"BCI Insiders" shall have the meaning set forth in the Merger
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Agreement.
"Certificate of Designations" shall mean the Certificate of
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Designations relating to the Preferred Stock dated as of the date hereof,
executed by the Company and duly filed on the
date hereof with the Delaware Secretary of State, and as the same may be amended
from time to time.
"Closing Date" shall mean the "Closing Date" as defined in the Merger
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Agreement.
"Common Stock" shall have the meaning set forth in the preamble to
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this Agreement.
"Company" shall have the meaning set forth in the preamble to this
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Agreement and shall also include the Company's successors.
"Counsel for the Holders" shall mean Weil, Gotshal & ▇▇▇▇▇▇ LLP, or
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such other counsel as shall be selected by the Majority Holders.
"Exchange Debentures" shall mean the exchange debentures into which
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the Preferred Stock is exchangeable, at the option of the Company, pursuant to
the Certificate of Designations.
"Exchange Indenture" shall mean the indenture relating to the Exchange
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Debentures between the Company and a trustee meeting the requirements of the TIA
that will be selected by the Company in the event the Company determines to
exchange the shares of Preferred Stock for Exchange Debentures, and as the same
may be amended from time to time in accordance with the terms thereof.
"Holders" shall mean any holders of limited liability company
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interests in BCEF or Market Partners who are not BCI Insiders, for so long as
they own any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities.
"Letter of Transmittal" shall have the meaning set forth in the Merger
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Agreement.
"Majority Holders" shall mean the Holders of a majority of the (a)
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aggregate liquidation preference of outstanding shares of Preferred Stock or the
aggregate principal amount of the outstanding Exchange Debentures (as
applicable) and (b) the outstanding shares of Common Stock issued pursuant to
the Merger, in each case that are also Registrable Securities; provided that
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whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
▇▇▇▇ ▇▇▇) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"Market Partners" shall have the meaning set forth in the preamble to
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this Agreement and shall also include Market Partners' successors.
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"Merger Agreement" shall have the meaning set forth in the preamble to
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this Agreement.
"Merger" shall have the meaning set forth in the preamble to this
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Agreement.
"Original Issuance Date" shall have the meaning set forth in the
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Certificate of Designations.
"Person" shall mean an individual, partnership, corporation, business
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trust, joint stock company, limited liability company, trust or unincorporated
association, joint venture, government authority or other entity of whatever
nature.
"Preferred Stock" shall have the meaning set forth in the preamble to
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this Agreement and any additional shares of Preferred Stock issued as a dividend
thereon pursuant to the Certificate of Designations in respect thereof.
"Prospectus" shall mean the prospectus included in the Shelf
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Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, and
including all material incorporated by reference therein.
"Registrable Securities" shall mean all Securities held by Holders who
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are not BCI Insiders; provided, however, that such Securities shall cease to be
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Registrable Securities (i) when a Shelf Registration Statement with respect to
such Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Shelf Registration
Statement, (ii) when such Securities have been sold to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the
1933 Act, (iii) when such securities are permitted to be sold pursuant to Rule
144 (k) (or any similar provision then in force) or (iv) when such Securities
shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration, listing and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for any
Holders in connection with blue sky qualification of any of the Registrable
Securities), (iii) all expenses of the Company in preparing, word processing,
printing and distributing any Shelf Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and disbursements relating to the
qualification of the Exchange Indenture under applicable securities laws, (v)
the fees and disbursements of the Trustee and its counsel, (vi) the fees and
disbursements of counsel for the Company and the fees and disbursements of
Counsel for the Holders through the date on which the Shelf Registration
Statement is initially declared effective by the SEC and (vii) the fees and
disbursements of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance.
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"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall mean, collectively, the Preferred Stock, the
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Exchange Debentures and the Common Stock.
"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Company pursuant to the provisions of Section 2(a) of this
Agreement which covers all of the Registrable Securities (which may include
other securities of the Company held by persons or entities having been
previously granted registration rights by the Company) on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
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"Trustee" shall mean the trustee with respect to the Exchange
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Debentures under the Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
(a) Within 60 days after the Original Issuance Date the Company shall
file a Shelf Registration Statement providing for the sale by the Holders of all
of the Registrable Securities. The Company shall use its reasonable best
efforts to cause such Shelf Registration Statement to be declared effective by
the SEC within 150 days after the Original Issuance Date. The Company agrees to
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective until two years after the Original Issuance Date or such
shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement in order to permit the Prospectus to be usable by the
Holders. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration and to use its reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as practicable thereafter. The Company
agrees to furnish Counsel for to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
(b) The Company shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a). Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
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(c) A Shelf Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
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effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, the
Company shall extend the period during which the Shelf Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
of such interference, to and including the date on which the offering of
Registrable Securities pursuant to such Shelf Registration Statement may legally
resume. In the event the Shelf Registration Statement is not filed with the SEC
within 60 days after the Original Issuance Date, the Company will immediately be
required to pay a penalty in the aggregate amount of $2,500,000 in cash to the
Holders on a pro rata basis based on the Registrable Securities held by each
Holder. In the event the Shelf Registration Statement is not declared effective
on or before the 150th day after the Original Issuance Date, commencing on the
151st day after the Original Issuance Date the annual dividend rate on the
Preferred Stock (or the interest rate on the Exchange Debentures, if applicable)
will increase to 11% and shall further increase by 0.5% for each period of 90
days thereafter (for greater certainty, if applicable the first 90-day period
would commence on the 241st day after the Original Issuance Date and end on the
330th day after the Original Issuance Date and the next 90-day period would
commence on the 331st day after the Original Issuance Date) until the Shelf
Registration Statement is declared effective, up to a maximum rate of 12%. In
the event the annual dividend rate on the Preferred Stock (or the interest rate
on the Exchange Debentures) increases pursuant to this Section 2(c), on the date
immediately following the date on which the Shelf Registration Statement is
declared effective by the SEC, such annual dividend rate (or interest rate) will
be reduced to 10%. Any payments to be made to Holders pursuant to this Section
2(c) shall be delivered to the Holders at their address in accordance with
Section 5(c) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement pursuant to Section 2(a) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and (y) shall be available for the sale of the Registrable
Securities by the selling Holders thereof and (z) shall comply as to form
in all material respects with the requirements of the applicable form, and
use its reasonable best efforts to cause such Shelf Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(b) promptly prepare and file with the SEC post-effective
amendments to such Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement effective for the applicable period
provided for in Section 2 hereof and cause each Prospectus to be
supplemented by any required
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prospectus supplement and, as so supplemented, to be filed pursuant to Rule
424 under the 1933 Act;
(c) furnish to each Holder and Counsel for the Holders, without
charge, as many copies of the Prospectus, including the preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and the
Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the selling
Holders in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in the Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Shelf Registration Statement shall reasonably request in writing by
the time the applicable Shelf Registration Statement is declared effective
by the SEC, to cooperate with such Holders in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc. and do any and all other acts and things which may be reasonably
necessary to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
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however, that the Company shall not be required to (i) qualify as a foreign
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corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) notify each Holder and Counsel for the Holders promptly and,
if requested by any such Holder or Counsel for the Holders, confirm such
advice in writing (i) when the Shelf Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings for that
purpose, (iii) of the happening of any event during the period the Shelf
Registration Statement is effective which, in the good faith determination
of the Board of Directors of the Company upon the advice of counsel, makes
any statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (iv) of any determination by
the Company that a post-effective amendment to the Shelf Registration
Statement would be appropriate;
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(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration Statement
at the earliest possible moment and provide to each Holder immediate notice
of the withdrawal of any such order;
(g) furnish to Counsel for the Holders, without charge, at
least one conformed copy of the Shelf Registration Statement and any post-
effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) upon the occurrence of any event contemplated by Section
3(e)(iii) hereof, use its reasonable best efforts to prepare and file with
the SEC as promptly as practicable a supplement or post-effective amendment
to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading;
(i) a reasonable time prior to the filing of the Shelf
Registration Statement, the Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which
is to be incorporated by reference into the Shelf Registration Statement or
the Prospectus after the initial filing of the Shelf Registration
Statement, provide copies of such document to the Counsel for the Holders
and make such of the representatives of the Company as shall be reasonably
requested by Counsel for the Holders available for discussion of such
document, and shall not at any time file or make any amendment to the Shelf
Registration Statement, the Prospectus or any amendment of or supplement to
the Shelf Registration Statement or the Prospectus or any document which is
to be incorporated by reference into the Shelf Registration Statement or
the Prospectus of which Counsel for the Holders shall not have previously
been advised and furnished a copy;
(j) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement;
(k) cause the Exchange Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Debentures, cooperate with the Trustee and the
Holders to effect such changes to the Exchange Indenture as may be required
for the Exchange Indenture to be so qualified in accordance with the terms
of the TIA and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes
and all other forms and
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documents required to be filed with the SEC to enable the Exchange
Indenture to be so qualified in a timely manner;
(l) use its reasonable best efforts to cause all Registrable
Securities to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are then
listed to the extent such Registrable Securities satisfy applicable listing
requirements;
(m) maintain a transfer agent and registrar, which may be the
same entity, for the Registrable Securities, not later than the effective
date of the Shelf Registration Statement; and
(n) if reasonably requested by any Holder of Registrable
Securities covered by the Shelf Registration Statement, (i) to the extent
counsel for the Company deems the inclusion of such information reasonably
necessary in order to enable such Holder to be able to sell Registrable
Securities, promptly incorporate in a Prospectus supplement such
information with respect to such Holder as such Holder reasonably requests
to be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to
be incorporated in such filing.
The Company may require each Holder to furnish to the Company
such information regarding the Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(e)(iii)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. The Company agrees to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
the Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the Shelf Registration Statement, the Company
shall extend the period during which the Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions. Any such suspensions
may not exceed 50 days (whether or not consecutive) during any 365-day period.
4. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each Holder
and each person, if any, who controls any Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, any Holder, from and against all losses,
claims, damages, liabilities and expenses (including, without limitation, any
legal or other expenses reasonably incurred by any Holder or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement (or
any amendment thereto) pursuant to which Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by reference,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or caused by any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue statement or omission or
alleged untrue statement or omission (i) based upon information relating to any
Holder furnished to the Company in writing by any selling Holder or Counsel for
the Holders expressly for use therein or (ii) included or omitted from a
preliminary Prospectus, but corrected in the final Prospectus (or an amendment
or supplement thereto), if the Holder did not deliver a copy of the final
Prospectus (and any then current amendment or supplement thereto) to the person
asserting such loses, claims, damages, liabilities or expenses at or prior to
the written confirmation of the sale of the Registrable Securities to such
person.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company and the other selling Holders, and each of their
respective directors, officers who sign the Shelf Registration Statement and
each Person, if any, who controls the Company and any other selling Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to the
Holders, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder or Counsel for the Holders
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding; provided, however, that the failure of any
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indemnified party to give notice shall not relieve the indemnifying party of its
obligations under paragraph (a) or (b) above, except to the extent that the
indemnifying party is prejudiced by reason of such failure. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such
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counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) in the opinion of counsel of the indemnified
party a conflict of interest may exist between the indemnified and indemnifying
parties. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings, be liable for (a) the fees and
expenses of more than one counsel (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning Section 15 of
the 1933 Act or Section 20 of the 1934 Act and (b) the fees and expenses of more
than one counsel (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Holders and such persons who control any
Holders, such firm shall be designated in writing by the Majority Holders. In
all other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may be withheld in its sole discretion) but,
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 4 is
unavailable to hold harmless an indemnified party under paragraph (a) or (b)
above in respect of any losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying and indemnified party from the
registration of the Registrable Securities or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, the relative fault of the
indemnifying party and the indemnified party in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this paragraph (d) were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph (d). No person guilty of
fraudulent
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misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Holders in this Section (d) to
contribute shall be several in proportion to the percentage of Registrable
Securities registered by them and not joint.
(e) Notwithstanding the provisions of this Section 4, no Holder
shall be required to indemnify or contribute any amount in excess of the amount
by which the total price at which Registrable Securities were sold by such
Holder exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
The indemnity provisions contained in this Section 4 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Holder or any
person controlling any Holder, or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) any sale of
Registrable Securities pursuant to the Shelf Registration Statement.
5. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and
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on or after the date of this Agreement will not enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Majority Holders affected by such amendment, modification, supplement, waiver or
consent; provided, however, that whenever the written consent of Holders of a
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specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by Insiders shall not be counted in determining
whether such consent was given by the Holders of such required percentage of
amount.
(c) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the address of such Holder on the books and records of the Company or
its transfer agent on the date hereof or at the most current address given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 5(c), and (ii) if to the Company, initially at the
Company's address set forth in the Merger Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 5(c).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is
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acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(e) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company and BCI Sub,
on the one hand, and BCEF and Market Partners, on the other hand, and any Holder
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Delaware.
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BOSTON CHICKEN, INC.
By_____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BCI ACQUISITION SUB, L.L.C.
By Boston Chicken, Inc., as Manager
By_____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Confirmed and accepted as of
the date first above written:
BC EQUITY FUNDING, L.L.C.
By Boston Chicken, Inc., as Manager
By___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
MARKET PARTNERS, L.L.C.
By___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, as Manager
By___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Manager
13