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EXHIBIT 10.8
WARRANT REGISTRATION RIGHTS AGREEMENT
This WARRANT REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of this 30th day of August 2000, by and among Sizzler
International, Inc., a Delaware corporation (the "Company"), and FFPE Holding
Company, Inc., a Delaware corporation (the "Holder").
R E C I T A L S
A. The Company is acquiring 82% of all of the outstanding membership
interests (the "Units") in FFPE, LLC, a Delaware limited liability company (the
"New Company"), on the terms and subject to the conditions of the Amended and
Restated LLC Membership Interest Purchase Agreement dated August 21, 2000 (the
"Purchase Agreement"), by and among Lender, S & C Company, Inc., a California
corporation (the "Old Company"), the New Company, Holder, the shareholders of
the Old Company, certain principals of the Old Company and the members of the
New Company.
B. In consideration of the Units, among other things, the Company is
issuing and delivering to the Holder warrants to purchase an aggregate of
1,250,000 shares of Common Stock of the Company pursuant to the terms of one or
more Warrants dated of even date herewith (as amended, augmented, supplemented
or otherwise modified from time to time, the "Warrants"). Capitalized terms used
herein but which are not otherwise defined shall have the meanings given to such
terms in the Warrant.
C. The execution and delivery of this Agreement by the Company is a
condition precedent to the obligations of the Shareholders to consummate the
transactions contemplated by the Stock Purchase Agreement.
A G R E E M E N T
In consideration of the foregoing recitals and the mutual covenants and
conditions contained herein, the parties, intending to be legally bound, agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC thereunder, all as the same shall be in effect at the
time.
"Affiliate" has the meaning set forth in Rule 144 of the Act.
"Business Day" means any day except a Saturday, Sunday or other
day in Los Angeles, California on which banks are authorized to close.
"Closing Date" means the date of this Agreement.
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"Common Stock" means the common stock, $0.01 par value per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time.
"Holders" has the meaning set forth in Section 2, below.
"Initiating Holders" means the holders of a majority of
Registrable Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Piggy-Back Registration" has the meaning set forth in Section 5,
below.
"Prospectus" means the prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"Public Equity Offering" means a public offering of Common Stock
registered under the Act (except for any registration pursuant to Form S-8).
"Register," "registered" and "registration" means a registration
effected by preparing and filing a registration statement or similar document in
compliance with the requirements of the Act, and the applicable rules and
regulations promulgated thereunder, and such registration statement becoming
effective.
"Registrable Securities" means any (i) Warrant Shares (whether or
not the related Warrants have been exercised), and (ii) any other securities
issued or issuable with respect to any such Warrant Shares by way of stock
dividends or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when such securities are no longer Transfer Restricted
Securities or such securities shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement.
"Registration Statement" means any registration statement,
including, without limitation, any short-form or shelf registration statement
described herein, of the Company relating to the registration for resale of
Transfer Restricted Securities that is filed pursuant to the provisions
of this Agreement and including the Prospectus included therein, all amendments
and supplements
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thereto (including post-effective amendments) and all exhibits and all material
incorporated by reference therein.
"SEC" means the Securities and Exchange Commission.
"Selling Holder" means a Holder who is selling Registrable
Securities in accordance with the provisions of this Agreement.
"Shelf Registration" has the meaning set forth in Section 4,
below.
"Special Counsel" means any special counsel to the Holders, for
which Holders will be reimbursed pursuant to this Agreement.
"Transfer Restricted Securities" means each Warrant or Warrant
Share, until the earliest to occur of: (i) the date on which such Warrant or
Warrant Share has been effectively registered under the Act and disposed of in
accordance with the Registration Statement covering it (and the purchasers
thereof have been issued a registered freely tradable security) and (ii) the
date on which such Warrant or Warrant Share is distributed to the public
pursuant to Rule 144 under the Act.
"Warrants" means the Warrants described in the recitals. Such
Warrants shall also include: (i) any new warrant or warrants issued upon the
transfer of all or any portion of the warrant issued pursuant to the Purchase
Agreement, and (ii) any warrant or warrants issued in substitution or
replacement therefor or upon the further transfer, division or combination of
any such new warrant or warrants.
"Warrant Shares" means the Common Stock or other securities which
any Holder may acquire upon exercise of a Warrant, together with any other
securities which such Holder may acquire on account of any such securities,
including, without limitation, as the result of any dividend or other
distribution on Common Stock or any split-up of such Common Stock as provided
for in the Warrant Agreement.
2. SECURITIES SUBJECT TO THIS AGREEMENT. A Person is deemed to be a
holder of Registrable Securities (a "Holder") whenever such Person owns
Registrable Securities or has the right to acquire such Registrable Securities,
whether or not such acquisition has actually been effected.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration or
Piggy-Back Registration, the Company shall (provided that it will not be
required to take any action pursuant to this Section that would, in the written
opinion of counsel for the Company, violate applicable law):
(a) No fewer than five Business Days prior to the initial filing
of a Registration Statement or Prospectus and no fewer than two Business Days
prior to the filing of any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein by
reference), furnish to the Holders, their Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such
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Holders, their Special Counsel and such underwriters, if any, and cause the
officers and directors of the Company, counsel to the Company and independent
certified public accountants to the Company to respond to such inquiries as
shall be necessary, in the opinion of respective counsel to such Holders and
such underwriters, to conduct a reasonable investigation within the meaning of
the Act, and shall use its best efforts to reflect in each such document filed
pursuant to a Shelf Registration, when so filed with the SEC, such reasonable
comments as the Holders, their Special Counsel and the managing underwriters, if
any, may propose in writing; provided, however, that the Company shall not be
deemed to have kept a Registration Statement effective during the applicable
period if it voluntarily takes or fails to take any action that results in
Selling Holders covered thereby not being able to sell such Registrable
Securities pursuant to Federal securities laws during that period; provided,
further, the Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto in connection with a Shelf
Registration to which the Holders of a majority of the Registrable Securities,
their Special Counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis;
(b) Take such action as may be necessary so that (i) any
Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto (and each report or other
document incorporated herein by reference in each case) complies in all material
respects with the Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (iii) any
Prospectus forming part of any Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading;
(c) Subject to Permitted Interruptions (as defined in Section
6(b), below), prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Act; and comply with the
provisions of the Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or in such Prospectus as so
supplemented;
(d) Notify the Selling Holders, their Special Counsel and the
managing underwriters, if any, promptly (and in any case within 2 Business
Days), and confirm such notice in writing, (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information; (iii) of the
issuance by the SEC, any state securities commission, any other governmental
agency or any court of any stop order or injunction suspending
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or enjoining the use or the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if at any time any of the
representations and warranties of either the Company contained in any agreement
(including any underwriting agreement) contemplated hereby cease to be true and
correct in all material respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event (the nature and pendency of which
need not be disclosed during a Permitted Interruption) that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any 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, not misleading, and that in the case of the Prospectus,
it will not contain any 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, and (vii) of the Company's reasonable determination that a
post-effective amendment to such Registration Statement would be appropriate;
(e) Use its best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment;
(f) If requested by the managing underwriters, if any, or the
Holders of a majority in aggregate number of the Registrable Securities being
sold in connection with such offering reasonably in advance of the filing
thereof, subject to Permitted Interruptions, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and such Holders reasonably agree should be
included therein, (ii) subject to the provisions herein regarding Permitted
Interruptions, keep such registration effective and 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 Prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement;
(g) Furnish to Special Counsel and each managing underwriter, if
any, without charge, at least one conformed copy of each Registration Statement
and each amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by reference, and
all exhibits to the extent requested as soon as practicable after the filing of
such documents with the SEC;
(h) Deliver to each Selling Holder, their Special Counsel, and
the underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
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by each of the Selling Holders and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto;
(i) Prior to any public offering of Registrable Securities, use
its best efforts to register or qualify or cooperate with the Holders of
Registrable Securities to be sold or tendered for, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Holder or underwriter reasonably
requests in writing; provided, however, that where Registrable Securities are
offered other than through an underwritten offering, the Company agrees to cause
its counsel to perform "blue sky" investigations and file registrations and
qualifications required to be filed pursuant to this Section 3(i); to use its
best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and to use its best efforts do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where they are not then so qualified or to take any
action that would subject them to general service of process in any such
jurisdiction where they are not then so subject or subject the Company to any
tax in any such jurisdiction where it is not then so subject;
(j) In connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being Registrable
Securities, cooperate with the Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates (with appropriate
CUSIP numbers) representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with the DTC, and to enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters, if any, or Holders many request at least two Business Days prior
to any sale of Registrable Securities;
(k) Use its best efforts to cause the offering of the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required as a consequence of the nature of such Selling
Holder's business, in which case the Company will cooperate in all reasonable
respects at the expense of such Selling Holder with the filing of such
Registration Statement and the granting of such approvals as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities; provided, however, that the
Company shall not be required to register the Registrable Securities in any
jurisdiction that would subject them to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject or to require the
Company to qualify to do business in any jurisdiction where it is not then so
qualified;
(l) Upon the occurrence of any event contemplated by Section
3(d)(vi) or 3(d)(vii), as promptly as practicable, subject to Permitted
Interruptions, prepare a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
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incorporated therein by reference, and file any other required document so that,
as thereafter delivered, such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Holders of the
occurrence of any event contemplated by Section 3(d)(vi) or 3(d)(vii), above,
the Holders shall suspend the use of the Prospectus until the requisite changes
to the Prospectus have been made;
(m) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other reasonable actions in connection therewith
(including those reasonably requested by the managing underwriters, if any, or
the Holders of a majority in aggregate number of the Registrable Securities
being sold) in order to expedite or facilitate the disposition of such
Registrable Securities, and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, with respect to the
business of the Company (including with respect to businesses or assets acquired
or to be acquired by it), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing or sole underwriters, if any, addressed
to the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters; (iii) obtain customary "comfort"
letters and updates thereof (including, if such registration includes an
underwritten public offering, a "bring down" comfort letter dated the date of
the closing under the underwriting agreement) from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any business which may hereafter be acquired by
the Company for which financial statements and financial data are required to be
included in the Registration Statement), addressed to each of the underwriters,
if any, such letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings and such other matters as reasonably required by the managing
underwriter or underwriters and as permitted by the Statement of Auditing
Standards No. 72; (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable to the
Selling Holders and the underwriters, if any, than those set forth in Section 9,
below (or such other provisions and procedures acceptable to Holders of a
majority in aggregate number of Registrable Securities covered by such
Registration Statement and the managing underwriters); and (v) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in aggregate number of the Registrable Securities being sold, their
Special Counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to clause 4(m)(i),
above, and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(n) Make available for inspection by one representative of the
Selling Holders, the managing underwriter participating in any such disposition
of Registrable Securities, if any, and any
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attorney, consultant or accountant retained by such Selling Holders or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company (including with
respect to business and assets acquired or to be acquired to the extent that
such information is available to the Company), and cause the officers,
directors, agents and employees of the Company (including with respect to
business and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in each case
reasonably requested by any such Inspector in connection with such Registration;
provided, however, the Company may first require that such Persons agree to keep
confidential any non-public information relating to the Company received by such
Person and not disclose such information (other than to an Affiliate or
prospective purchaser who agrees to respect the confidentiality provisions of
this Section 3(n)) until such information has been made generally available to
the public (other than as a result of a disclosure or failure to safeguard by
such Inspector) unless the release of such information is required by law or
necessary to respond to inquiries of regulatory authorities (including the
National Association of Insurance Commissioners, or similar organizations or
their successors); without limiting the foregoing, no such information shall be
used by such Inspector as the basis for any market transactions in securities of
the Company or its subsidiaries in violation of law;
(o) Use its best efforts to cause the Warrant Shares issuable
upon exercise of the Warrants and any other Registrable Securities to be quoted
or listed on any exchange upon which the Company's Common Stock is then quoted
or listed;
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to their security holders earning statements
satisfying the provisions of Section 11(a) of the Act and Rule 158 thereunder
(or any similar rule promulgated under the Act), no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
reasonable efforts underwritten offering and (ii) if not sold to underwriters in
such an offering commencing on the first day of the first fiscal quarter after
the effective date of a Registration Statement, which statement shall cover said
period, consistent with the requirements of Rule 158; and
(q) Subject to Permitted Interruptions, use its best efforts to
take all other steps reasonably necessary to effect the registration, offering
and sale of the Registrable Securities covered by the Registration Statement.
The Company may require each Selling Holder as to which any
registration is being effected to furnish to the Company such information
regarding the distribution of such Registrable Securities as is required by law
to be disclosed in the applicable Registration Statement and the Company may
exclude from such registration the Registrable Securities of any Selling Holder
who unreasonably fails to furnish such information promptly after receiving such
request.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder or any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such Holder, to the
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effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Act or any similar Federal statute then in force, the deletion
of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(d)(ii), 3(d)(iii), 3(d)(v) or 3(d)(vi),
above, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(l) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus.
4. SHELF REGISTRATION.
(a) Upon such time that the Fair Value of a share of Common Stock
is greater than the Exercise Price, the Initiating Holders may request in
writing that the Company file with the SEC, a registration statement for an
offering to be made on a continuous basis covering all of the Registrable
Securities (the "Shelf Registration"); provided, however, that if pursuant to
the then applicable rules and regulations of the SEC, the registration statement
may not cover all of the Registrable Securities, the Company shall cause the
maximum number of the Registrable Securities which may then be covered by such
registration statement to be so covered by such registration statement and file
a post-effective amendment to such registration statement as and when required
to cover such additional Registrable Securities. The Company will give written
notice of such request to all registered holders of Registrable Securities
within fifteen (15) days of receipt thereof. Within 90 days of receipt of such
request the Company will, subject to the terms of this Agreement, file a
Registration Statement and thereafter use its best efforts to effect the Shelf
Registration under the Act.
(b) The Shelf Registration shall be on such appropriate
registration form of the SEC (i) as shall be selected by the Company and (ii) as
shall permit the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition on a continuous basis covering all
of the Registrable Securities. The Company shall use its best efforts to keep
the Shelf Registration continuously effective for the lesser of (a) the period
commencing on the effective date of the Registration Statement and ending on the
one-year anniversary of the Expiration Date, (b) a period ending on the date
upon which all Registrable Securities covered by the Shelf Registration
have been sold, (c) a period ending on the date after which restrictions on
sales of securities by persons other than affiliates pursuant to Commission Rule
144 (or any successor provision) terminate, or (d) a period ending on the date
after which the Holders no longer own any of the Registrable Securities.
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(c) The Company will pay all Registration Expenses in connection
with any Shelf Registration requested pursuant to this Section 4. The Selling
Holders shall pay the underwriting discounts, commissions, and transfer taxes,
if any, in connection with each Registration Statement requested under this
Section 4, which costs shall be allocated pro rata among all Selling Holders on
whose behalf Registrable Securities of the Company are included in such
registration on the basis of the respective amounts of the Registrable
Securities then being registered on their behalf.
(d) The Holders shall be entitled to request one (1) registration
pursuant to this Section 4. The Company shall not be required to prepare and
file a registration statement pursuant to this Section 4 which would become
effective within six months following the effective date of a registration
statement filed by the Company with the SEC pertaining to an underwritten public
offering of securities for which each of the Holders was entitled to request
registration of its Registrable Securities pursuant to Section 5, below.
5. PIGGY-BACK REGISTRATIONS.
(a) If the Company proposes to file a Registration Statement
under the Act with respect to an offering by the Company for its own account or
for the account of any of the holders of any class of its Common Stock in a
firmly underwritten Public Equity Offering (other than (i) a Registration
Statement on Form S-4 or S-8 (or any substitute form that may be adopted by the
SEC) or (ii) a Registration Statement filed in connection with an exchange offer
or offering of securities solely to the Company's existing security holders),
then the Company shall give written notice of such proposed filing to the
Holders as soon as practicable (but in no event fewer than 20 days before the
anticipated filing date), and such notice shall offer such Holders the
opportunity to register such number of Registrable Securities as each such
Holder may request in writing within 20 days after receipt of such written
notice from the Company (which request shall specify the number of Registrable
Securities intended to be disposed of by such Selling Holder) (a "Piggy-Back
Registration"). Upon the written request of any such Holder made within 20 days
after the receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such Holder and the
intended method of disposition thereof), the Company will, subject to the terms
of this Agreement, effect the registration under the Act of all Registrable
Securities which the Company has been so requested to register by the Holders
thereof, to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so to
be registered, by inclusion of such Registrable Securities in the registration
statement that covers the securities which the Company proposes to register,
provided that, if at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason either not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder and, thereupon, (i) in the case of a determination
not to register shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, without prejudice, however, to
the rights of any holder or holders of Registrable Securities entitled to do so
to request that such registration be effected as a registration under Section 4,
above, and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same
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period as the delay in registering such other securities. No registration
effected under this Section 5 shall relieve the Company of its obligation to
effect any registration upon request under Section 4, above, nor shall any such
registration hereunder be deemed to have been effected pursuant to Section 4.
The Company shall use its best efforts to keep such Piggy-Back Registration
continuously effective under the Act until the earlier of (A) an aggregate of 90
days after the effective date thereof or (B) the consummation of the
distribution by the Holders of all of the Registrable Securities covered
thereby.
(b) The Company shall use its best efforts to cause the managing
underwriter or underwriters of such proposed offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included
in the same terms and conditions as any similar securities of the Company or any
other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. Any Selling Holder shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to these provisions by giving written notice to
the Company of its request to withdraw prior to the effective date of such
registration statement. The Company may withdraw a Piggy-Back Registration at
any time prior to the time it becomes effective or the Company may elect to
delay the registration; provided, however, that the Company shall give prompt
written notice thereof to participating Holders.
(c) The Company will pay all Registration Expenses in connection
with registration of Registrable Securities requested pursuant to this Section 5
and the Selling Holders shall pay the underwriting discounts, commissions, and
transfer taxes, if any, relating to the sale of such Selling Holders'
Registrable Securities pursuant to this Section 5, such costs being allocated
pro rata among all Selling Holders on whose behalf Registrable Securities of the
Company are included in such registration on the basis of the respective amounts
of Registrable Securities then being registered on their behalf.
(d) If a registration pursuant to this Section 5 involves an
underwritten offering of the securities so being registered, whether or not for
sale for the account of the Company, the Company will, if requested by any
Holder and subject to the provisions of this Section 5, use its best efforts to
arrange for such underwriters to include all the Registrable Securities to be
offered and sold by such Holder among the securities to be distributed by such
underwriters. Notwithstanding anything to the contrary, if the managing
underwriter of such underwritten offering shall, in writing, inform the Holders
requesting such registration and the holders of any of the Company's other
securities which shall have exercised registration rights in respect of such
underwritten offering of its belief that the number of securities requested to
be included in such registration exceeds the number which can be sold in (or
during the time of) such offering, then the Company will be required to include
in such registration statement only the amount of securities that it is so
advised should be included in such registration. In such event, (x) in cases
initially involving the registration for sale of
securities for the Company's own account, securities shall be registered in such
offering in the following order of priority: (i) first, the securities that the
Company proposes to register, and (ii) second, the securities that have been
requested to be included in such registration by Holders and by Persons entitled
to exercise "piggy-back" registration rights pursuant to contractual commitments
of the Company (pro rata on the amount of securities sought to be registered by
such Holders and
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Persons) and (y) in cases not initially involving the registration for sale of
securities for the Company's own account, securities shall be registered in such
offering as follows: (i) first, the securities of any person whose exercise of a
"demand" registration right pursuant to a contractual commitment of the Company
is the basis for the registration, (ii) second, the securities that have been
requested to be included in such registration by Holders and other persons
entitled to exercise "piggy-back" registration rights pursuant to contractual
commitments (pro rata based on the amount of securities sought to be registered
by such Holders and persons) and (iii) third, the securities which the Company
proposes to register.
6. DISCONTINUANCE OF DISPOSITION OF REGISTRABLE SECURITIES
(a) Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(d)(iii),
3(d)(iv), 3(d)(v), 3(d)(vi) or 3(d)(vii), above, or a Permitted Interruption,
such Holder will forthwith discontinue disposition of any Registrable Securities
covered by a registration statement or prospectus until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
3(l), above, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated or
deemed to be incorporated by reference in such prospectus.
(b) Anything in this Agreement to the contrary notwithstanding,
it is understood and agreed that the Company shall not be required to prepare or
file a registration statement, amendment or post-effective amendment thereto or
prospectus supplement or to supplement or amend any registration statement or
otherwise facilitate the resale of Registrable Securities, and it shall be free
voluntarily to take or omit to take any other action that would result in the
impracticality of any such filing, supplement or amendment if such action is
taken or omitted to be taken by the Company in good faith and for valid business
reasons, including, without limitation, matters relating to acquisitions or
divestitures, so long as the Company shall, as promptly as practicable
thereafter, make such filing, supplement or amendment and, so long as the
Company shall as promptly as is practicable thereafter, comply with the
requirements of Section 3(l), above, if applicable (any period described in this
Section 6(b) during which Holders of Registrable Securities are not able to sell
such Registrable Securities under a registration statement is herein called a
"Permitted Interruption"). The Company hereby agrees to notify each of the
Holders of Registrable Securities of the occurrence of, and the termination of,
each Permitted Interruption (the nature and pendency of which need not be
disclosed during such Permitted Interruption).
7. PURCHASE (AND EXERCISE) OF THE WARRANTS BY THE UNDERWRITERS.
Notwithstanding any other provision of this Agreement to the contrary, in
connection with any Shelf Registration or Piggy-Back Registration which is to be
an underwritten offering, to the extent all or any portion of the Registrable
Securities to be included in such registration consist of shares of Common Stock
issuable upon exercise of the Warrants or any portion thereof, the holders of
such Registrable Securities may require that the underwriter or underwriters
purchase (and exercise) the Warrants or any portion thereof rather than require
the holders of the Registrable Securities to exercise the Warrants or portion
thereof in connection with such registration, unless the underwriters inform
such
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holders that such a purchase and exercise of the Warrants will materially and
adversely affect the proposed offering. The Company shall take all such action
and provide all such assistance as may be reasonably requested by the holders of
Registrable Securities to facilitate any such purchase (and exercise) of the
Warrants agreed to by the underwriter or underwriters, including, without
limitation, issuing the Common Stock issuable upon the exercise of the Warrants
or any portion thereof to be issued within such time period as will permit the
underwriters to make and complete the distribution contemplated by the
underwriting.
8. LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO OBLIGATIONS UNDER
REGISTRATION COVENANTS. The obligations of the Company described in Sections 4
and 5 of this Agreement are subject to each of the following limitations,
conditions and qualifications:
(a) The Company shall not be required by this Agreement to
include securities in a Registration Statement relating to a Piggy-Back
Registration above if (i) in the written opinion of counsel to the Company,
addressed to the Holders seeking registration and delivered to them, the Holders
of such securities seeking registration would be free to sell all such
securities within the succeeding three-month period, without registration, under
Rule 144 under the Act, which opinion may be based in part upon the
representation by the Holders of such securities seeking registration, which
registration shall not be unreasonably withheld, that each such Holder is not an
affiliate of the Company within the meaning of the Act, and (ii) all
requirements under the Act for effecting such sales are satisfied at such time.
(b) The Company's obligations shall be subject to the obligations
of the Selling Holders to furnish all information and materials and not to take
any and all actions as may be required under Federal and state securities laws
and regulations to permit the Company to comply with all applicable requirements
of the SEC and to obtain any acceleration of the effective date of such
Registration Statement.
(c) The Company shall not be obligated to cause any special audit
to be undertaken in connection with any registration pursuant to this Agreement
unless such audit is requested by the underwriters with respect to such
registration.
(d) The Company shall not be required by this Agreement to
include securities in or maintain a Shelf Registration if, at the time of such
demand, the Company is no longer subject to Section 13 or 15(d) of the Exchange
Act.
9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder
of Registrable Securities, and each of their respective officers, employees,
affiliates, directors, partners, members, attorneys and agents, and each Person,
if any, who controls each Holder of Registrable Securities (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act)(each, a "Holder
Indemnified Party"), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses,
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claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of
Registrable Securities, 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, except (i) insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or omission
or alleged untrue statement or omission that is based upon information relating
to any of the Holders furnished in writing to the Company by any of the Holders
or (ii) to the extent that any such losses, claims, damages, liabilities or
judgments result solely from an untrue statement of a material fact contained
in, or the omission of a material fact from the Registration Statement or
Prospectus, which untrue statement or omission was corrected in an amended or
supplemented Registration Statement or Prospectus, if the person alleging such
loss, claim, damage, liability or judgment was not sent or given, at or prior to
the written confirmation of such sale, a copy of the amended or supplemented
Registration Statement or Prospectus if the Company had previously furnished
copies thereof to such indemnified party and if delivery of a prospectus was
required by the Act and was not so made.
(b) Each Holder of Registrable Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent
as the foregoing indemnity from the Company set forth in Section 9(a), above,
but only with reference to information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the net proceeds actually received by such Holder with
respect to its sale of Registrable Securities pursuant to a Registration
Statement exceed (i) the amount paid by such Holder for such Registrable
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 9(a) or 9(b), above
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying person") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect
of which indemnity may be sought pursuant to both Sections 9(a) and 9(b), above,
a Holder shall not be required to assume the defense of such action pursuant to
this Section 9(c), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of the Holder). The indemnifying party shall
promptly, but in no event more than five (5) Business Days after request for
payment, pay directly or reimburse each indemnified party for any legal and any
other expenses reasonably incurred by such indemnified party in connection with
investigating and defending any such loss, judgment, claim, damage, liability or
action. After notice from the indemnifying party to the indemnified party that
it will assume the defense of such claim or action, the indemnifying party shall
not be liable to the
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indemnified party for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and other than as specified in the remainder of this
Section 9(c). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred upon written request and
presentation of reasonably satisfactory invoices. Such firm shall be designated
in writing by all indemnified Holders, in the case of the parties indemnified
pursuant to Section 9(a), above, and by the Company, in the case of parties
indemnified pursuant to Section 9(b), above. The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty Business Days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 9 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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, liabilities or judgments in such proportion as
is appropriate to reflect the relative fault of the Company, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company, on the one hand, and of the Holder, on the other hand,
shall be determined by reference to, among other things,
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whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by the Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in Section 9(b), above, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 9(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 the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 9, no Holder or any
Holder Indemnified Party shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the net proceeds actually received by
such Holder with respect to the sale of Registrable Securities pursuant to a
Registration Statement exceed (i) the amount paid by such Holder for such
Registrable Securities and (ii) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or, alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 9(d) are several in proportion to the respective principal amount of
Registrable Securities held by each Holder hereunder and not joint.
10. RULE 144A AND RULE 144/OTHER SALES.
The Company agrees with each Holder, for so long as any
Registrable Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144.
11. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause the Company to register Registrable
Securities pursuant to this Agreement may be assigned (but only with all related
obligations) by a Holder to a transferee or
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assignee of this Warrant or such Registrable Securities who, after such
assignment or transfer, holds, or has the right to acquire, at least 100,000
shares of Registrable Securities (subject to appropriate adjustment for stock
splits, stock dividends, combinations and other recapitalizations), provided the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; provided,
however, such assignment shall be effective only if immediately following such
transfer, the Registrable Securities are Transfer Restricted Securities.
12. MISCELLANEOUS.
(a) Amendments and Waivers. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, except by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made and delivered in accordance with the Stock
Purchase Agreement.
(c) Successors and Assigns. The rights and obligations of the
Holder under this Agreement shall be assignable in whole or in part as set forth
in Section 11, above. Each such assignee, by accepting such assignment of the
rights of the assignor hereunder, shall be deemed to have agreed to and be bound
by the obligations of the assignor hereunder. The rights and obligations of the
Company hereunder may not be assigned or delegated.
(d) 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.
(e) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the rights and
obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the State of California applicable to contracts
made and performed in such state, without regard to the choice of law or
conflicts of laws principles.
(g) 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.
(h) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are
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no restrictions, promises, warrantees or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE "COMPANY": THE "HOLDER":
SIZZLER INTERNATIONAL, INC., FFPE HOLDING COMPANY, INC.,
a Delaware corporation a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX By: XXXXXX XXXXXXXXX-XXXXX
--------------------------------- ----------------------------
Its: President and CEO Its: Vice President
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