EXHIBIT 10.1 EXECUTION
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of August 19, 1996 by and between The
Pantry, Inc., a Delaware corporation (the "Company"), FS Equity Partners III,
L.P., a Delaware limited partnership ("FSEP III"), FS Equity Partners
International, L.P., a Delaware limited partnership ("FSEP International;" FSEP
III and FSEP International are sometimes collectively referred to herein as the
"FS Entities"), Chase Manhattan Capital Corporation, a Delaware corporation
("Chase"), and Baseball Partners, a New York general partnership ("BP;" Chase
and BP are sometimes collectively referred to herein as the "Chase Entities").
The FS Entities and the Chase Entities are sometimes collectively referred to as
the "Holders" and individually as the "Holder." This Agreement is entered into
concurrently with the execution of that certain Stockholders' Agreement dated
August 19, 1996 entered into by and among the parties hereto (the "Stockholders'
Agreement"), and amends and restates that certain Registration Rights Agreement
dated November 30, 1995 by and between the Company, the FS Entities and Chase
(the "Registration Rights Agreement") entered into in connection with that
certain Stock Purchase Agreement (the "FS Stock Purchase Agreement") dated
November 30, 1995 entered into by and among the Company, the FS Entities,
Montrose Value Fund Limited Partnership and Montrose Financial No. 6 Limited
Partnership (Pantry) (collectively, "The Montrose Group"), W. Xxxx Xxxxxx
("Xxxxxx") and Xxxxx X. Xxxxxx ("Xxxxxx") and that certain Stock Purchase
Agreement (the "Chase Stock Purchase Agreement") dated November 30, 1995 by and
among the Company, Chase, The Montrose Group, Xxxxxx and Xxxxxx. This Agreement
is entered into to provide registration rights equivalent to those provided with
respect to the shares of the Company's common stock, par value $0.01 per share
(the "Common Stock") purchased under the FS Stock Purchase Agreement and the
Chase Stock Purchase Agreement for Fifty Four Thousand Eight Hundred
Twenty-Eight (54,828) shares of Common Stock purchased from The Montrose Group
pursuant to the terms and conditions of that certain Settlement Agreement dated
July 16, 1996, by and between Xxxxxxx Xxxxxx & Co., Incorporated, FSEP III, FSEP
International, Chase, The Montrose Group, Xxxxxx, Xxxxxx and the Company (the
"Settlement Agreement") (all such shares of Common Stock purchased pursuant to
the FS Stock Purchase Agreement, the Chase Stock Purchase Agreement or the
Settlement Agreement, together with any other securities for which or into which
they may be converted or exchanged, shall be referred to herein as the
"Registrable Securities"). Terms not otherwise defined herein shall have the
same meaning given them in the Stockholders' Agreement.
1. Restrictions on Transfer. Notwithstanding any
provision contained in this Agreement to the contrary, the Registrable
Securities shall not be transferable except upon the conditions specified in
this Agreement, which conditions are intended, among other things, to insure
compliance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), in respect of the transfer of such Registrable Securities.
Each Holder, on
the execution and delivery of this Agreement, agrees that such Holder will not
transfer the Registrable Securities prior to delivery to the Company of an
opinion of counsel (as such opinion and such counsel are described in Section 2
of this Agreement), or until registration of such Registrable Securities under
the Securities Act has become effective.
2. Opinion of Counsel. In connection with any exercise
or transfer of the Registrable Securities, the following provisions shall apply:
(a) If in the opinion of Xxxxxxx & XxXxxxxx, or such
other counsel as shall reasonably be approved by the Company, the proposed
transfer of Registrable Securities may be effected without registration of such
Registrable Securities under the Securities Act, each Holder shall be entitled
to transfer such Registrable Securities in accordance with the proposed method
of disposition.
(b) If, in the opinion of such counsel the proposed
transfer of such Registrable Securities may not be effected without registration
of such Registrable Securities under the Securities Act, then none of the
Holders shall be entitled to transfer such Registrable Securities until such
registration is effected.
(c) Chase may transfer Registrable Securities within
the "Chase Capital Group" without complying with the above opinion procedures
provided that the transferee agrees to be bound by all provisions of this
Agreement. "Chase Capital Group" means and includes (i) Chase, (ii) entities
that are controlled Affiliates (as defined in the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of Chase and (iii) entities the majority
of the equity owners of which are employees, officers or directors of any of the
foregoing. BP may transfer Registrable Securities to a member of the Chase
Capital Group in the manner described in Section 6(b) of the Stockholders'
Agreement.
3. Demand Registration.
(a) Upon the written request of the Holder or
Holders of at least fifty percent (50%) of the Registrable Securities (the
"Initiating Holders") the Company shall be obligated to effect the registration
under the Securities Act of such Registrable Securities as are requested to be
registered by the Initiating Holders, all in accordance with the following
provisions of this Agreement, provided that the obligation of the Company to
effect such registration shall not be deemed to have been satisfied until the
registration statement with respect thereto has become effective under the
Securities Act and only so long as no stop order suspending the effectiveness of
the registration statement or the qualification or registration of any of the
Registrable Securities for sale in any jurisdiction in which the Company shall
be required pursuant to Section 5(d) to register or qualify such Registrable
Securities shall not have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Securities and Exchange Commission (the
"Commission") or any similar state agency. Within ten (10) days of the request
for registration by the Initiating Holders, the Company shall give written
notice of such request to all Holders, who shall be
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entitled, by written notice to the Company and subject to Section 4(a) hereof,
to include shares of Registrable Securities in any registration prepared by the
Company pursuant to this Section 3(a). The Company shall not be obligated to
effect more than two (2) demand registrations pursuant to this Section 3(a).
(b) In addition to the registration rights provided
pursuant to Section 3(a) hereof, at any time and from time to time after six
months following a firm commitment underwritten initial public offering of the
Company's Common Stock (an "IPO"), upon the written request of the Initiating
Holders, or at the request of any Holder which agrees to register Registrable
Securities having a value of Five Million Dollars ($5,000,000) or more after an
IPO, the Company shall be obligated to effect the registration under the
Securities Act on Form S-3 (if the Company is then eligible to use such
registration form), or any similar short form registration adopted by the
Commission for which the Company may then be eligible, of all or any portion of
the Registrable Securities held by such Holder, all in accordance with the
applicable provisions of this Agreement.
(c) Whenever the Company shall be requested by the
Initiating Holders pursuant to Section 3(a) or by a Holder pursuant to Section
3(b) to effect the registration of Registrable Securities under the Securities
Act, the Company shall, as provided in Section 5, effect the registration under
the Securities Act of the Registrable Securities which the Company has been
requested to register pursuant to Section 3(a) or (b), all to the extent
requisite to permit the disposition by such Holder of the Registrable Securities
so registered.
(d) In connection with requesting registration of
Registrable Securities pursuant to Section 3(a) or (b), if the Initiating
Holders or a Holder in the case of Section 3(b) advise the Company that they
intend to publicly offer or distribute Registrable Securities to be covered by
the registration statement pursuant to a firm commitment underwriting with an
investment banking firm or firms selected by the Holders, the Company and any
other person entitled to include shares of Common Stock in such registration
statement shall enter into the same underwriting agreement with such underwriter
or underwriters as shall such Holders, containing representations, warranties
and agreements not substantially different from those customarily made by an
issuer or selling shareholder in underwriting agreements with respect to
secondary distributions.
(e) Neither the Company nor any of its security
holders (other than the Holders) shall have the right to include any securities
of the Company in a registration requested pursuant to Section 3(a) or (b)
unless (i) such securities are of the same class as any of the Registrable
Securities included in such registration and (ii) the offering is either (A) not
being underwritten and the Holders of a majority of the Registrable Securities
requesting registration consent to such inclusion in writing or (B) a firm
commitment underwriting and the managing underwriter has informed the Holders
that inclusion of such securities will not adversely affect the price range or
the probability of success of the offering and such securities are allocated as
provided in Section 3(f) and sold on the same terms and conditions as apply to
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the Registrable Securities being sold. If any security holders of the Company
(other than the Holders) register securities of the Company in a registration in
accordance with the provisions of Section 3(a) or (b), such security holders
shall pay their pro rata share of the Registration Expenses, as defined below,
unless the Company has agreed to pay such expenses and, in the opinion of
counsel to the Holders, such payment would not affect the ability of the
Registrable Securities to be registered or qualified under the blue sky laws of
any jurisdiction.
(f) If the Company or any of its security holders
request the right to include equity securities in a registration statement filed
pursuant to Section 3(a) or (b) and such securities are proposed to be sold in a
firm commitment underwritten offering and the managing underwriters advise the
Company that, in their opinion, the total number of securities requested to be
included in such registration exceeds the number of securities which can be sold
in such offering without adversely affecting the price range or probability of
success of such offering, the securities to be included in such offering shall
include (i) first, all of the Registrable Securities being registered, (ii)
second, pro rata among the other holders of the Company's securities requesting
inclusion in such registration on the basis of the number of shares of
securities requested to be registered by such holders and (iii) third, such
other securities being offered by the Company.
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4."Piggyback" Registrations.
(a) If the Company at any time or from time to time
after the IPO, proposes to file with the Commission a registration statement
under the Securities Act (other than a registration statement on Form S-4 or
S-8, or any form substituting therefor, or filed in connection with an exchange
offer) for the sale of shares of Common Stock, it will at each such time give
written notice to each Holder of its intention so to do. Upon the written
request of any Holder, the Company will use its best efforts to cause each
Registrable Security which the Company has been requested to register by any
Holder, in the aggregate, to be included in such registration statement under
the Securities Act, all to the extent required to permit the sale or other
disposition by each such Holder of the Registrable Securities so registered.
Notwithstanding the foregoing, if the managing underwriter or underwriters, if
any, of the offering to be effected pursuant to such registration statement
delivers a written opinion to each Holder requesting the registration of
Registrable Securities that the total number of shares of Common Stock which it
and any other persons or entities intend to include in such offering would
adversely affect the price range or probability of success of such offering,
then the Company shall include in such registration: (i) first, all securities
the Company proposes to sell, and (ii) second, all Registrable Securities
requested to be included in such registration by any Holders and all securities
of the Company requested to be included in such registration by any other
holders of Securities who are entitled to include securities in such
registration pursuant to written registration rights agreements approved by the
Board of Directors of the Company (the "Other Stockholders") in excess of the
number of shares of its securities of the Company proposes to sell which, in the
opinion of such underwriters, can be sold without adversely affecting the price
range or probability of success of such offering (allocated pro rata among such
Holders and the Other Stockholders on the basis of the number of shares of such
securities requested to be included therein).
(b) If all or substantially all of the securities
(other than the Registrable Securities) to be registered for sale pursuant to a
registration statement, the intention to file which caused a notice to be given
pursuant to Section 4(a), are to be offered for sale for the account of the
Company and are to be distributed by or through an underwriter or underwriters
of recognized standing pursuant to underwriting terms appropriate for such
transactions, then each Holder agrees that such Holder shall forbear from
selling Registrable Securities to the public (except as part of such
underwritten registration) pursuant to a registration statement or pursuant to
Rule 144 or 144A under the Securities Act for a period of fourteen (14) business
days prior to and one hundred twenty (120) days following the effective date of
the registration statement to which reference is made in Section 4(a).
(c) Notwithstanding anything contained herein to the
contrary, if the FS Entities are permitted to include any Registrable Securities
in the IPO then each other Holder shall also be permitted to include a pro rata
portion of the Registrable Securities held thereby.
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5. Company's Obligations in Registration. If and
whenever the Company is obligated by the provisions of this Agreement to effect
the registration of Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible,
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become and remain effective
during the period required for the distribution of the securities covered by the
registration statement, provided that, if the Registrable Securities covered by
such registration statement are not to be sold to or through underwriters acting
for the Company, the Company shall not be required to keep such registration
statement effective, or to prepare and file any amendment or supplement thereto,
after the expiration of one hundred eighty (180) days following the date on
which such registration statement becomes effective under the Securities Act or
such longer period during which the Commission requires that such registration
statement be kept effective with respect to any of the Registrable Securities so
registered;
(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 Registrable Securities covered by such
registration statement, whenever any Holder shall desire to dispose of the same,
subject, however, to the proviso contained in Section 5(a) and provided that in
any event the Company's obligations under this Section 5(b) shall terminate on
the first anniversary of the effective date of any such registration statement;
(c) furnish to each Holder 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 Holder may reasonably request in
order to facilitate the disposition of such Registrable Securities;
(d) make the Chairman of the Board of Directors of
the Company, the Chief Executive Officer and other members of the management of
the Company available to cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, among other things, the
participation of such persons in meetings with potential investors and the
assistance of such persons with the preparation of all materials for such
investors;
(e) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each Holder shall
reasonably request, and do any and all other acts and things to so register or
qualify which may be necessary or advisable to enable such Holder to consummate
the disposition in such jurisdictions of such Registrable Securities;
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(f) if at any time a prospectus relating to the
Registrable Securities covered by such registration statement is required to be
delivered under the Securities Act and any event occurs as a result of which the
prospectus included in such registration statement as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the prospectus to comply with the Securities Act,
the Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance and shall use its best efforts to cause any
amendment of such registration statement containing an amended prospectus to be
made effective as soon as possible; and
(g) furnish to each Holder at the time of the
disposition of Registrable Securities by such Holder an opinion of counsel for
the Company, in form and substance satisfactory to such Holder, to the effect
that (i) a registration statement covering such Registrable Securities has been
filed with the Commission under the Securities Act and has been made effective
by order of the Commission, (ii) such registration statement and the prospectus
contained therein comply in all material respects with the requirements of the
Securities Act, and nothing has come to said counsel's attention which would
cause it to believe that either such registration statement or the prospectus
contains any 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 the light of the circumstances under which they were made, not misleading,
(iii) the prospectus meeting the delivery requirements of the Securities Act is
available for delivery, (iv) no stop order has been issued by the Commission
suspending the effectiveness of such registration statement and, to the best of
such counsel's knowledge, no proceedings for the issuance of such a stop order
are threatened or contemplated, and (v) there has been compliance with the
applicable provisions of the securities or blue sky laws of each jurisdiction in
which the Company shall be required pursuant to Section 5(d) hereof to register
or qualify such Registrable Securities, assuming the accuracy and completeness
of the information furnished to such counsel with respect to each filing related
to such laws.
6. Payment of Registration Expenses. The costs and
expenses of all "piggyback" registrations and qualifications under the
Securities Act pursuant to Section 4 hereof, all registrations and
qualifications under the Securities Act pursuant to Section 3(b) hereof and two
(2) demand registrations and qualifications under the Securities Act pursuant to
Section 3(a), and of all other actions which the Company is required to take or
effect pursuant to this Agreement shall be paid by the Company (including
without limitation all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company and for each Holder and expenses of any
special audit incident to or required in connection with any such registration)
(collectively, "Registration Expenses"), provided that the Company shall not be
obligated to pay the underwriters' discount or commission in respect of such
Registrable Securities.
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7. Information From Each Holder. Notices and requests
delivered by any Holder to the Company pursuant to this Agreement shall contain
such information regarding the Holder, such Holder's Registrable Securities and
the intended method of disposition thereof as shall reasonably be required in
connection with the action to be taken.
8. Restrictions on Public Sale by the Company and
Others. The Company shall not effect any public sale or distribution of any of
its equity securities, or cause to be effected any other registration of such
securities (other than securities issued pursuant to an employee benefit plan),
during the fourteen (14) business days prior to, and during the one hundred
twenty (120)-day period beginning on the effective date of a registration
statement covering the Registrable Securities (the "Holdback Period"), and the
Company shall cause each holder of its equity securities (other than securities
purchased in a registered public offering) issued after November 30, 1995 to
agree not to effect any public sale or distribution of any securities during
such period, except as part of such registration, if permitted. Each Holder
agrees not to effect any public sale or distribution of such securities during
any Holdback Period with respect to securities that the Company issued or agreed
to be issued prior to November 30, 1995, except pursuant to a registration
covering the Registrable Securities effected pursuant to Section 4 hereof.
9. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holders and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement, provided that (i) if FSEP III, FSEP
International or any of their Affiliates, or the Chase Entities or any of their
Affiliates participate in such registration, such parties will not be required
to make any representations or warranties except those that relate solely to
such parties and (ii) the liability of FSEP III, FSEP International or any of
their Affiliates, and the Chase Entities or any of their Affiliates to any
underwriter under such underwriting agreement will be limited to liability
arising from misstatements in, or omissions from, written information regarding
such parties provided by or on behalf of such parties for inclusion in the
prospectus and shall be limited to proceeds received by such Holder from the
offering.
10. Company's Indemnification. In the event of any
registration under the Securities Act of Registrable Securities pursuant to this
Agreement, the Company hereby agrees to indemnify and hold harmless each Holder
and each other person, if any, who controls each such Holder within the meaning
of Section 15 of the Securities Act and each other person (including any
underwriter) who participates in the offering of such Registrable Securities,
against any loss, claim, damage or liability, joint or several, to which any
Holder or such controlling person or a participating person may become subject
under the Securities Act, the Exchange Act or other federal or state law or
regulation, at common law or
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otherwise, to the extent that such loss, claim, damage or liability (or
proceeding in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, in any preliminary prospectus or final prospectus
contained therein, or in any amendment or supplement thereto, or arises out of
or is based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Holder and each such controlling person
or participating person for any legal or other expense reasonably incurred by
such Holder or such controlling person or participating person in connection
with investigating or defending any such loss, claim, damage, liability or
proceeding, provided that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, said preliminary or final
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by an instrument duly executed
by such Holder or such controlling or participating person, as the case may be,
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
11. Indemnification of Each Holder. It shall be a
condition of the Company's obligation under this Agreement to effect any
registration under the Securities Act that there shall have been delivered to
the Company an agreement or agreements duly executed by each Holder whereby each
Holder, severally but not jointly, agrees to indemnify and hold harmless the
Company, each other person referred to in subparts (1), (2) and (3) of Section
11(a) of the Securities Act in respect of such registration statement and each
other person, if any, which controls the Company within the meaning of Section
15 of the Securities Act, against any loss, claim, damage or liability, joint or
several, to which the Company or such other person or such person controlling
the Company may become subject under the Securities Act, the Exchange Act or
other federal or state law or regulation, at common law or otherwise, but only
to the extent that such loss, claim, damage or liability (or proceeding in
respect thereof) arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities
Act, in any preliminary prospectus or final prospectus contained therein or in
any amendment or supplement thereto, or arises out of or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
which, in each such case, has been made in or omitted from such registration
statement, said preliminary or final prospectus or said amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder specifically for use in
the preparation thereof. Such indemnification shall be limited to proceeds
received by such Holder from the offering.
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12. Notification of and Participation in Actions.
Promptly after receipt by an indemnified party under this Agreement of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this
Agreement, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not affect the
liability of the indemnifying party hereunder except to the extent it is
actually prejudiced by such omission and will not relieve it from any liability
which it may have to any indemnified party otherwise than under this Agreement.
In case any such action is brought against any indemnified party and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate in and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so as to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Agreement for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
13. Contribution.
(a) If the indemnification provided for in this
Agreement from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages or liabilities!to which such
indemnified party would be otherwise entitled under this Agreement, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified parties in connection with the actions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. In no event shall any Holder be required to contribute an amount
greater than the dollar amount of the net proceeds received by such Holder with
respect to the sale of Registrable Securities to which such losses, claims,
damages or liabilities relates.
(b) The Company and each Holder agree that it would
not be just and equitable if contribution pursuant to this Agreement were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations
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referred to in the immediately preceding paragraph. Neither the Company nor any
Holder, if guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act), shall be entitled to contribution. The
contribution provided for in this Agreement shall survive the transfer of the
Registrable Securities and shall remain in full force and effect regardless of
any investigation made by or on behalf of any indemnified party.
14. Public Information. At any time after the Company
has completed its initial public offering of Common Stock, if any Holder desires
to make sales of any Registrable Securities in reliance on Rule 144 promulgated
under the Securities Act the Company covenants and agrees that either there will
be available adequate current public information with respect to the Company as
required by paragraph (c) of said Rule 144 or the Company will use its best
efforts to make such information available without delay if such information is
not available. Without limiting the foregoing, after the Company has completed
its initial public offering of Common Stock, the Company will timely file with
the Commission all reports required to be filed under Sections 13 and 15(d) of
the Exchange Act and will promptly furnish to each Holder, upon request, a
written statement that the Company has complied with all such reporting
requirements.
15. Subsequent Offerings of Shares. The Company hereby
grants to each Holder the right of first refusal to purchase, pro rata, all or
any part of any Additional Securities, as defined below, which the Company may,
from time to time, propose to sell and issue. A Holder's pro rata share, for
purposes of this right of first refusal, shall be such Holder's percentage
interest in the shares of Common Stock then outstanding (assuming, for purposes
of such percentage interest, complete conversion of all outstanding convertible
securities and complete exercise of any and all outstanding options and warrants
of the Company). This right of first refusal shall be subject to the following
provisions:
(a) "Additional Securities" shall mean any shares of
capital stock of the Company, including any shares of Common Stock or of
preferred stock, whether now authorized or not, and any rights, options or
warrants to purchase such shares, and securities of any type whatsoever that
are, or may become, convertible into such shares, provided that "Additional
Securities" do not include (i) any securities that are issued on a proportional
basis to all of the holders of Common Stock, (ii) any securities that are issued
or issuable in connection with any public offering of shares of Common Stock by
the Company, (iii) any securities issued pursuant to the acquisition of another
corporation by the Company, (iv) any of the Company's Common Stock (or related
options exercisable for such Common Stock) issued to employees, officers and
directors of, and consultants to, the Company, pursuant to any arrangement
approved by the Board of Directors of the Company, (v) any securities issued
upon conversion or exercise of any convertible securities, options or warrants,
provided that the rights of first refusal established by this Section 15 first
applied or were properly waived with respect to the initial sale or grant by the
Company of such convertible securities, options or warrants, (vi) any securities
issued in connection with any stock split, stock dividend or recapitalization by
the Company, and (vii) any securities issued in connection with an issuance
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of debt securities of the Company where the primary purpose of such issuance is
to provide debt financing for the Company.
(b) In the event the Company proposes to undertake
an issuance of Additional Securities, it shall give each Holder written notice
of its intention, describing the type of Additional Securities, and the price
and terms upon which the Company proposes to issue the same. Each Holder shall
have fifteen (15) days from the date of receipt of any such notice to agree to
purchase up to such Holder's pro rata share of such Additional Securities for
the price and upon the terms specified in the notice by giving written notice to
the Company and stating therein the quantity of Additional Securities to be
purchased.
(c) If a Holder fails to exercise the right of first
refusal within such fifteen (15) days period, the Company shall have ninety (90)
days thereafter to sell the Additional Securities with respect to which a
Holder's option was not exercised, at the price and upon terms no more favorable
to the purchasers of such securities than specified in the Company's notice. In
the event the Company has not sold the Additional Securities within said ninety
(90) day period, the Company shall not thereafter issue or sell any Additional
Securities, without first offering such securities to the Holders in the manner
provided in Section 15.
(d) The rights granted to a Holder under this
Section 15 shall terminate (i) upon completion of the Company's initial public
offering of Common Stock pursuant to an effective registration statement that
results in gross proceeds to the Company of Twenty Million Dollars ($20,000,000)
or more or (ii) upon the sale by a Holder of more than fifty percent (50%) of
the shares of Common Stock held by such Holder on the date of such sale,
provided that a transfer within the Chase Capital Group will not count against
this limitation if made in accordance with the provisions of Section 6 of the
Stockholders Agreement of even date herewith.
16. Other Registration Rights. Except for the
Registration Rights Agreement amended and restated hereby, the Company has not
previously entered into and will not hereafter enter into any agreement granting
registration rights with respect to its securities which is in conflict or
inconsistent with the rights of the Holders set forth in this Agreement.
17. Amendments. This Agreement may not be amended,
supplemented, canceled or discharged except by written instrument executed by
the Company and the holders of at least fifty percent (50%) of the Registrable
Securities held by the FS Entities and fifty percent (50%) of the Registrable
Securities held by the Chase Entities.
18. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, provided, however, that the registration and other rights set forth in
this Agreement may only be assigned to a purchaser of at least fifty percent
(50%) of the Registrable Securities held by such party on the date of such
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sale, provided that the Chase Entities may transfer their rights within the
Chase Capital Group subject to and in accordance with the provisions of Section
6 of the Stockholders Agreement of even date herewith.
19. Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
Agreement and each of which shall be deemed an original.
20. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of North Carolina,
without regard to principles of conflicts of laws.
21. Entire Agreement. This Agreement is intended by the
parties hereto as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the parties hereto in respect of the subject
matter contained herein. This Agreement is intended to and does hereby supersede
and restate entirely in all respects the Registration Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by an officer or partner thereunto duly authorized, all
as of the date first written above.
THE PANTRY, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
President and Cheif Executive Officer
FS EQUITY PARTNERS III, L.P.,
a Delaware limited partnership
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Managing Director
FS EQUITY PARTNERS INTERNATIONAL, L.P.,
a Delaware limited partnership
By: FS&Co. International, L.P.
Its: General Partner
By: FS International Holdings Limited
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Managing Director
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
CHASE MANHATTAN CAPITAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxxxxxx X. Xxxxxxx
Principal
BASEBALL PARTNERS,
a New York general partnership
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxxxxxx X. Xxxxxxx
General Partner
15
