EXHIBIT 4.3
EXECUTION COPY
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of May 21, 1997, among
AFC Enterprises, Inc., a Minnesota corporation (the "Company"), Xxxxxxx, Xxxxx &
Co., CIBC Wood Gundy Securities Corp., and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (together, the "Purchasers"), identified on Schedule I to
the Purchase Agreement (as defined herein), of the 10 1/4% Senior Subordinated
Notes due 2007 of the Company.
The Company proposes to issue and sell to the Purchasers upon the terms set
forth in the Purchase Agreement the Securities (as defined herein). As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as
follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the following
terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered with
the Commission under the Exchange Act.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall mean
the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" shall have the meaning assigned thereto in Section
3(d) hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated as of May 21, 1997, between the
Company and United States Trust Company of New York, as Trustee, as the same
shall be amended from time to time.
"Issue Date" shall mean May 21, 1997.
The term "person" shall mean a corporation, association, partnership,
organization, business, limited liability company, individual, government or
political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of May 16,
1997, between the Purchasers and the Company relating to the Securities.
"Registrable Securities" shall mean the Securities; provided, however, that
a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange Security received by a broker-dealer
in an Exchange Offer in exchange for a Registrable Security that was not
acquired by the broker-dealer directly from the Company will also be a
Registrable Security through and including the earlier of the 90th day after
the Exchange Offer is completed or such time as such broker-dealer no longer
owns such Security); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has
been sold or otherwise transferred by the holder thereof pursuant to and in a
manner contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 (or any successor provision) under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the
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Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in Section
2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in Section
4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a
holder who has arrangements or understandings with any person to participate
in the Exchange Offer for the purpose of a distribution (within the meaning of
the Securities Act) of the Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.
"Securities" shall mean the 10 1/4% Senior Subordinated Notes due 2007 of
the Company to be issued and sold to the Purchasers, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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Unless the context otherwise requires, any reference herein to a "Section" or
"clause" refers to a Section or clause, as the case may be, of this Exchange and
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Exchange and Registration Rights
Agreement as a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to file
under the Securities Act, as soon as practicable, but no later than 60 days
after the Issue Date, a registration statement relating to an offer to exchange
(such registration statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company, which debt securities
are substantially identical to the Securities (and are entitled to the benefits
of a trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain registration rights, transfer
restrictions and provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange Securities").
The Company agrees to use its best efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as practicable,
but no later than 180 days after the Issue Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form required by the
Commission and will comply with all applicable tender offer rules and
regulations under the Exchange Act and all applicable federal and state
securities laws. The Company further agrees to use its best efforts to commence
and complete the Exchange Offer promptly, but no later than 45 days after such
Registration Statement has become effective, hold the Exchange Offer open for at
least 30 days and issue Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. The Exchange Offer will be deemed to have been "completed"
only if the debt securities received by holders other than Restricted Holders in
the Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without need for further compliance with Section 5 of the
Securities Act, and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the com mencement of the Exchange Offer.
The Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in connection with any resales of Exchange
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Securities by a broker-dealer, other than resales of Exchange Securities
received by a broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company,
and (y) to keep such Exchange Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of (x) the expiration of the 90th day
after the Exchange Offer has been completed or (y) such time as such broker-
dealers no longer own any Registrable Securities. With respect to such Exchange
Registration Statement, each broker-dealer that holds Exchange Securities
received in an Exchange Offer in exchange for Registerable Securities not
acquired by it directly from the Company shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and (e)
hereof.
(b) If prior to the time the Exchange Offer is completed existing Commission
interpretations are changed such that the Securities received by holders other
than Restricted Holders in the Exchange Offer for Registrable Securities are not
or would not be, upon receipt, transferable by each such holder without need for
further compliance with Section 5 of the Securities Act, in lieu of conducting
the Exchange Offer contemplated by Section 2(a), the Company shall use its best
efforts to file under the Securities Act as soon as practicable, but no later
than the later of (x) 30 days after the time such obligation to file arises and
(y) 60 days after the Issue Date, a "shelf" registration statement providing for
the registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and such registration statement, the "Shelf Registration
Statement"). In addition, in the event that the Purchasers shall not have resold
all of the Securities initially purchased by them from the Company pursuant to
the Purchase Agreement, prior to the consummation of the Exchange Offer, the
Company shall file under the Securities Act as soon as practicable a Shelf
Registration Statement. The Company agrees to use its best efforts to cause the
Shelf Registration Statement to become or be declared effective no later than
120 days after such Shelf Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of (x) the second anniversary of the Effective Time or (y) such time as there
are no longer any Registrable Securities outstanding. The Company further agrees
to supplement or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations promulgated thereunder for a
shelf registration, and the Company agrees to furnish to the holders of the
Registrable Securities copies of any such supplement or amendment to such
registration statement prior to its being used or promptly following its filing
with the Commission.
(c) In the event that (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which such
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registration statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 45 days after the initial
effective date of the Exchange Registration Statement relating to the Exchange
Offer (if the Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section 2(a)
or 2(b) hereof is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.25% for the
first 90 days of the Registration Default Period, at a per annum rate of 0.50%
for the second 90 days of the Registration Default Period, at a per annum rate
of 0.75% for the third 90 days of the Registration Default Period and at a per
annum rate of 1.0% thereafter for the remaining portion of the Registration
Default Period. The Special Interest shall be payable in cash semi-annually in
arrears on each May 15 and November 15. Special Interest, if any, shall be
computed on the basis of a 360 day year of twelve 30-day months and the number
of days actually elapsed.
(d) The Company shall take all actions necessary or advisable to be taken by
it to ensure that the transactions contemplated herein are effected as so
contemplated.
(e) Any reference herein to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any post-
effective amendment to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated, therein by
reference as of such time.
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3. Registration Procedures.
(a) (i) In connection with the Exchange Offer, the Company shall comply
with all of the provisions of Section 3(d) and Section 3(e) below, shall use its
best efforts to effect such exchange to permit the sale of Registrable
Securities being sold in accordance with the intended method or methods of
distribution thereof, and, prior to effectiveness of the Exchange Offer
Registration Statement, shall, if required by the Commission, provide a
supplemental letter to the Commission (A) stating that the Company is
registering the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988),
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Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and (B) including a
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representation that the Company has not entered into any arrangement or
understanding with any person to distribute the Exchange Securities to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each holder participating in the Exchange Offer is
acquiring the Exchange Securities in its ordinary course of business and has no
arrangement or understanding with any person to participate in the distribution
of the Exchange Securities received in the Exchange Offer.
(ii) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Agreement, each holder of Registrable Securities shall
furnish, upon the request of the Company, prior to the consummation thereof, a
written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Exchange Securities to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in
its ordinary course of business. In addition, all such holders of Registrable
Securities shall otherwise cooperate in the Company's preparations for the
Exchange Offer. Each holder hereby acknowledges and agrees that any Broker-
Dealer and any such holder, in either case, using the Exchange Offer (1) could
not under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
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(available June 5, 1991) and Exxon Capital Holdings Corporation (available May
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13, 1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Securities obtained
by such holder in exchange for Exchange Securities acquired by such holder
directly from the Company.
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If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(b) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act.
(c) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(d) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable, but no
later than 60 days after the Issue Date, an Exchange Registration Statement on
any form which may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a), and use its best
efforts to cause such Exchange Registration Statement to become effective as
soon as practicable there after, but no later than 180 days after the Issue
Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and promptly
provide each broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or supplemented),
in conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request prior to
the expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify the holders of Registrable Securities, the sales or
placement agent, if any, and the managing underwriter or underwriters, if any
and each broker-dealer that has requested or received copies of the prospectus
included in such registration statement, and confirm such advice in writing,
(A) when such Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment
has been filed, and, with
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respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the
Commission and by the Blue Sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Company contemplated by
Section 5 hereof cease to be true and correct in all material respects, (E) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose or (F) at
any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment
thereto does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder or contains an 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 not misleading in light of
the circumstances then existing;
(iv) in the event that the Company would be required, pursuant to Section
3(f)(iii)(f) above, to notify the selling holders of Registrable Securities,
the placement or sales agent, if any, or the managing underwriters, if any, as
applicable and any broker-dealers holding Exchange Securities, prepare and
furnish without delay to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and shall 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 not misleading in
light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order suspending
the effec tiveness of such Exchange Registration Statement or any post-
effective amendment thereto at the earliest practicable date;
(vi) use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the
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expiration of the Resale Period and (C) take any and all other actions as may
be reasonably necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that the Company shall not be required for
any such purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the requirements
of this Section 3(d)(vi), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of incorporation
or by-laws or any agreement between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may
be required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange Securities, not later than
the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders as soon as practicable
but no later than eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
(e) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall use its best efforts to cause the
Shelf Registration to permit the disposition of the Registrable Securities by
the holders thereof in accordance with the intended method or methods of
disposition thereof provided for in the Shelf Registration Statement. In
connection therewith, the Company shall, as soon as reasonably possible (or as
otherwise specified):
(i) prepare and file with the Commission, as soon as practicable, a Shelf
Registration Statement on any form which may be utilized by the Company and
which shall permit the disposition of the Registrable Securities in accordance
with the intended method or methods thereof, as specified in writing by the
holders of the Registrable Securities, and use its best efforts to cause such
Shelf Registration Statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be
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required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration Statement, and
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment simultaneously with or prior to its being used or
filed with the Commission;
(iii) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition
by the holders thereof provided for in such Shelf Registration Statement;
(iv) provide (A) the holders of the Registrable Securities to be included
in such Shelf Registration Statement, (B) the underwriters (which term, for
purposes of this Exchange and Registration Rights Agreement, shall include a
person deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent therefor,
(D) counsel for any such underwriter or agent and (E) not more than one
counsel for all the holders of such Registrable Securities the opportunity to
participate in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each amendment or
supplement thereto;
(v) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available
at reasonable times at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in Section 3(e)(iv)
who shall certify to the Company that they have a current intention to sell
the Registrable Securities pursuant to the Shelf Registration such financial
and other information and books and records of the Company as reasonably
requested, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not disclose to any
other person any information or records reasonably designated by the Company
as being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be required so
to disclose such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such person shall have given
the Company prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration Statement
or the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus in
order that such Shelf
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Registration Statement, prospectus, amendment or supplement thereto, as the
case may be, complies with applicable requirements of the Federal securities
laws and the rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities, any
sales or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such advice
in writing, (A) when such Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the Blue Sky or securities
commissioner or regulator of any state with respect thereto or any request by
the Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 3(e)(xv) or Section 5 hereof cease to be true
and correct in all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities Act, such Shelf
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(vii) use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of such registration statement or any post-effective
amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing
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underwriter or underwriters, such agent or such holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount of
Registrable Securities being sold by such holder or agent or to any
underwriters, the name and description of such holder, agent or underwriter,
the offering price of such Registrable Securities and any discount, commission
or other compensation payable in respect thereof, the purchase price being
paid therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such holder or agent or
to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(ix) upon request, furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(e)(iv) an executed copy
(or, in the case of a holder of Registrable Securities, a conformed copy) of
such Shelf Registration Statement, each such amendment and supplement thereto
(in each case including all exhibits thereto (in the case of a holder of
Registrable Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such holder, agent or underwriter, as the
case may be) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary prospectus),
in conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and such other documents, as such holder, agent, if
any, and underwriter, if any, may reasonably request in order to facilitate
the offering and disposition of the Registrable Securities owned by such
holder, offered or sold by such agent or underwritten by such underwriter and
to permit such holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and, subject to Sections 2(a) and
(b) and 3(e)(vi)(C), (E) and (F), the Company hereby consents to the use of
such prospectus (including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such holder and by any such agent and
underwriter, in each case in the form most recently provided to such person by
the Company, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(x) use its best efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any holder of such
Registrable Securities and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall
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reasonably request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b) above and for
so long as may be necessary to enable any such holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf Registration
Statement and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each such holder, agent, if any, and
underwriter, if any, to consummate the disposition in such jurisdictions of
such Registrable Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(e)(x), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its stockholders;
(xi) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether Federal, state or local, which may
be required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by any
combination of such methods, and which shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not later
than the applicable Effective Time;
(xiv) enter into one or more underwriting agreements, engagement letters,
agency agreements, "best efforts" underwriting agreements or similar
agreements, as appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions in connection
therewith as any holders of Registrable Securities aggregating at least a
majority in aggregate principal amount of the Registrable Securities at the
time outstanding shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities; provided, that the Company
shall not be required to enter into any such agreement more than once with
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respect to all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering which the
Company shall have then engaged;
(xv) whether or not an agreement of the type referred to in Section
3(e)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by the Shelf Registration is an underwritten offering or
is made through a placement or sales agent or any other entity, (A) make such
representations and warranties to the holders of the Registrable Securities
covered by such Shelf Registration and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof in form, substance and scope as
are customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement filed on
the form applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters, of the
type customarily covered by such an opinion, as the managing underwriters, if
any, or as any holders of at least a majority in aggregate principal amount of
the Registrable Securities at the time outstanding may reasonably request,
addressed to such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the due incorporation and good standing of the Company
and its subsidiaries; the qualification of the Company and its U.S.
subsidiaries, if any, to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 3(d)(xiv) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
Registrable Securities; the absence of material legal or govern mental
proceedings involving the Company; the absence of a breach by the Company or
any of its subsidiaries of, or a default under, material agreements binding
upon the Company or any subsidiary of the Company; the absence of governmental
approvals required to be obtained in connection with the Shelf Registration,
the offering and sale of the Registrable Securities, this Exchange and
Registration Rights Agreement or any agreement of the type referred to in
Section 3(e)(xiv) hereof, except such approvals as may be required under state
securities or blue sky laws; the material compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference therein and
of the Indenture with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder,
respectively; and, subject to reasonable and customary limitations and
exceptions; and, such counsel shall also state in such opinion that, as of the
date of the opinion and of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus included therein, as then
amended or
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supplemented, and from the documents incorporated by reference therein (in
each case other than the financial statements and other financial information
contained therein) of an untrue statement of a material fact or the omission
to state therein a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the Commission under
the Exchange Act)); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company addressed to the
selling holders of Registrable Securities, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i) the effective
date of such Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus (and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably requested
by any holders of at least a majority in aggregate principal amount of the
Registrable Securities at the time outstanding or the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof to
evidence the accuracy of the representations and warranties made pursuant to
clause (A) above or those contained in Section 5(a) hereof and the compliance
with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company; and (E)
undertake such obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the case
may be;
(xvii) in the event that any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities
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Dealers, Inc. ("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including by (A) if such Rules or By-
Laws shall so require, engaging a "qualified independent underwriter" (as
defined in the schedules thereto (or any successor thereto)) to participate in
the preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6 hereof,
and (C) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules of
Fair Practice of the NASD; and
(xviii) comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders as soon as practicable
but in any event not later than eighteen months after the effective date of
such Shelf Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder).
(f) In the event that the Company would be required, pursuant to Section
3(e)(vi)(F) above, to notify the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, as applicable, the Company shall without delay prepare and furnish
to each such holder, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall 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 not misleading in
light of the circumstances then existing. Each holder of Registrable Securities
agrees that upon receipt of any notice from the Company pursuant to Section
3(e)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement applicable
to such Registrable Securities until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such holder's possession
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of the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(g) The Company may require each holder of Registrable Securities as to which
any Shelf Registration pursuant to Section 2(b) is being effected to furnish to
the Company such information regarding such holder and such holder's intended
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act. Each such
holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such holder to the Company or
of the occurrence of any event in either case as a result of which any
prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such holder or such holder's
intended method of disposition of such Registrable Securities or omits to state
any material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the disposition of such Registrable Securities, 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 in
light of the circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly, upon
request, all expenses incident to the Company's performance of or compliance
with this Exchange and Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses, (b)
all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(e)(x) hereof, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and "Blue Sky" or legal investment memoranda and all other documents
in connection with the offering, sale or delivery of Securities to be disposed
of (including certificates representing the Securities), (d) messenger,
telephone and delivery expenses relating to the offering, sale or delivery of
Securities and the preparation of documents referred in clause (c) above, (e)
fees and expenses of the Trustee under the Indenture, any agent of the Trustee
and any counsel for the Trustee and of any collateral agent or
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custodian, (f) internal expenses (including all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) reasonable fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(e)(xvii) hereof, (i) any fees charged
by securities rating services for rating the Securities and (j) fees, expenses
and disbursements of any other persons, including special experts, retained by
the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly).
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser and
each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and each
prospectus (including any preliminary or summary prospectus) contained therein
or furnished pursuant to Section 3(e) or Section 3(d) hereof and any further
amendments or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the case may be,
and, in the case of an underwritten offering of Registrable Securities, at the
time of the closing under the underwriting agreement relating thereto, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and 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 not misleading; and at all times
subsequent to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a notice
has been given to holders of Registrable Securities pursuant to Section
3(e)(vi)(F) or Section 3(e)(iii)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(f) or
Section 3(d)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(e) or Section 3(d) hereof, as then
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amended or supplemented, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and 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 not
misleading in the light of the circumstances then existing; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by a holder of Registrable Securities expressly for
use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
a holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the Company is a party or
by which the Company or any subsidiary of the Company is bound or to which any
of the property or assets of the Company or any subsidiary of the Company is
subject, nor will such action result in any violation of the provisions of the
certificate of incorporation, as amended, or the by-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any subsidiary of the Company
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the consummation by the Company of the transactions
contemplated by this Exchange and Registration Rights Agreement, except the
registration under the Securities Act of the Securities, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
State securities or blue sky laws in connection with the offering and
distribution of the Securities.
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(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each of the holders of Registrable Securities included in a
registration statement filed pursuant to Section 2(a) or 2(b) hereof, and each
person who participates as a placement or sales agent or as an underwriter in
any offering or sale of such Registrable Securities against any losses, claims,
damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an 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, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to any such holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are 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 the Company shall, and it hereby
agrees to, reimburse such holder, such agent and such underwriter for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by holders of
Registrable Securities expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and hold
harmless the Company, and in the case of a Shelf Registration Statement all
other holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable Securities
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein
-21-
or furnished by the Company to any such holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are 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, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such holder
or underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such holder shall be required to undertake
liability to any person under this Section 6(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such holder from the sale of
such holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, and such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent (which consent shall not be unreasonably withheld) of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. The
indemnifying party shall not be required to indemnify any indemnified party for
any amount paid or payable by such indemnified party in the settlement of any
action, proceeding or investigation without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement
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as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds 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, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
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(e) The obligations of the Company under this Section 6 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of each holder,
agent and underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, agent or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered by
the Shelf Registration are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by the holders
of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Section 13 and 15(d) of the Exchange
Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission
under the Securities Act) and the rules and regulations adopted by the
Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time
-24-
to time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants, covenants
and agrees that it has not granted, and shall not grant, registration rights
with respect to Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would be
no adequate remedy at law if any party fails to perform any of their respective
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which they may be entitled at law or in equity, shall be entitled to compel
specific performance of the respective obligations of any other party under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000-0000, Attention: Executive
Vice President-General Counsel, with a copy to Xxxxx Xxxxxxx Xxxxxx Xxxxxxx &
Xxxxxxxxx, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxx
X. Xxxxxxxxx, and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other address as
the Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase,
-25-
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a beneficiary hereof for all purposes
and such Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the benefits
of, and be conclusively deemed to have agreed to be bound by all of the
applicable terms and provisions of this Exchange and Registration Rights
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of the Purchasers or any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Registrable
Securities pursuant to the Purchase Agreement and the transfer and registration
of Registrable Securities by such holder and the consummation of an Exchange
Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and paragraphs
of this Exchange and Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Exchange and Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities
-26-
at the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of holders whose Registrable Securities are being
tendered pursuant to the Exchange Offer and that does not affect directly or
indirectly the rights of other holders whose Registrable Securities are not
being tendered pursuant to such Exchange Offer may be given by the holders of at
least a majority of the outstanding principal amount of Registrable Securities
being tendered or registered.
(i) Inspection. For so long as this Exchange and Registration Rights Agreement
shall be in effect, this Exchange and Registration Rights Agreement and a
complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above
and at the office of the Trustee under the Indenture.
-27-
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
AFC ENTERPRISES, INC.
By:/s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President, General
Counsel and Secretary
XXXXXXX, XXXXX & CO.
CIBC WOOD GUNDY SECURITIES CORP.
XXXXXXXXX, XXXXXX AND XXXXXXXX
SECURITIES CORPORATION
On behalf of each of the Purchasers,
By:/s/ Xxxxxxx, Sachs & Co.
----------------------------------------
(Xxxxxxx, Xxxxx & Co.)
-28-
Exhibit A
AFC ENTERPRISES, INC.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
---------------
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]/*/
------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the AFC Enterprises, Inc. (the
"Company") 10 1/4% Senior Subordinated Notes due 2007 (the "Securities") are
held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
--------------------------------------------------------------------------
the enclosed materials as soon as possible as their rights to have the
------------------------------------------
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
---------------------
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact AFC Enterprises,
Inc., 0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention:
Executive Vice President-General Counsel, (000) 000-0000.
------------------------
/*/ Not less than 28 calendar days from date of mailing.
-29-
AFC Enterprises, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement
(the "Exchange and Registration Rights Agreement"), between AFC Enterprises,
Inc. (the "Company") and the Purchasers named therein. Pursuant to the Exchange
and Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form [___] (the "Shelf Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's 10 1/4% Senior Subordinated Notes due 2007 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
------------------------------------
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named
-30-
or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
----------------------
Registration Rights Agreement.
-31-
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
-32-
QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
(i) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(ii) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
(b) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(c) Beneficial Ownership of Securities:
-1-
Except as set forth below in this Item (3), the undersigned does not
--------------------------------------------------------------------
beneficially own any Securities.
--------------------------------
(i) Principal amount of Registrable Securities beneficially
owned:
CUSIP No(s). of such Registrable Securities:
(ii) Principal amount of Securities other than Registrable
Securities beneficially owned:
CUSIP No(s). of such other Securities:
-2-
(iii) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf
Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
(d) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
-------------------------------------------------------------------
Securityholder is not the beneficial or registered owner of any other securities
--------------------------------------------------------------------------------
of the Company, other than the Securities listed above in Item (3).
-------------------------------------------------------------------
State any exceptions here:
(e) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of its
----------------------------------------------------------------------------
affiliates, officers, directors or principal equity holders (5% or more) has
----------------------------------------------------------------------------
held any position or office or has had any other material relationship with the
-------------------------------------------------------------------------------
Company (or its predecessors or affiliates) during the past three years.
------------------------------------------------------------------------
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
-------------------------------------------------------------------------
to distribute the Registrable Securities listed above in Item (3) only as
-------------------------------------------------------------------------
follows (if at all): Such Registrable Securities may be sold from time to time
-------------------------------------------------------------------------------
directly by the undersigned Selling Securityholder or, alternatively, through
-----------------------------------------------------------------------------
underwriters, broker-
---------------------
-3-
dealers or agents. Such Registrable Securities may be sold in one or more
-------------------------------------------------------------------------
transactions at fixed prices, at prevailing market prices at the time of sale,
------------------------------------------------------------------------------
at varying prices determined at the time of sale, or at negotiated prices. Such
-------------------------------------------------------------------------------
sales may be effected in transactions (which may involve crosses or block
-------------------------------------------------------------------------
transactions) (i) on any national securities exchange or quotation service on
-----------------------------------------------------------------------------
which the Registered Securities may be listed or quoted at the time of sale,
----------------------------------------------------------------------------
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
----------------------------------------------------------------------------
such exchanges or services or in the over-the-counter market, or (iv) through
-----------------------------------------------------------------------------
the writing of options. In connection with sales of the Registrable Securities
------------------------------------------------------------------------------
or otherwise, the Selling Securityholder may enter into hedging transactions
----------------------------------------------------------------------------
with broker-dealers, which may in turn engage in short sales of the Registrable
-------------------------------------------------------------------------------
Securities in the course of hedging the positions they assume. The Selling
-------------------------------------------------------------------------
Securityholder may also sell Registrable Securities short and deliver
---------------------------------------------------------------------
Registrable Securities to close out such short positions, or loan or pledge
---------------------------------------------------------------------------
Registrable Securities to broker-dealers that in turn may sell such securities.
-------------------------------------------------------------------------------
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly Rule
10b-6.
In the event that the Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related
-4-
Prospectus. The Selling Securityholder understands that such information will be
relied upon by the Company in connection with the preparation of the Shelf
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d)
of the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
AFC Enterprises, Inc.
0 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Executive Vice President-General Counsel
(000) 000-0000.
(ii) With a copy to:
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx & Xxxxxxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling Securityholder
and received by the Company's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs,
-5-
personal representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities beneficially owned by
such Selling Securityholder and listed in Item (3) above. This Agreement shall
be governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx & Xxxxxxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
(000) 000-0000
-6-
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
AFC Enterprises, Inc.
c/o Trustee
United States Trust Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: AFC Enterprises, Inc. (the "Company")
10 1/4% Senior Subordinated Notes due 2007
------------------------------------------
Dear Sirs:
Please be advised that _____________________ has transferred $___________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [___] (File No. 333-____) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated ___________, 199_ or in supplements thereto, and that the aggregate
principal
-1-
(g) amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
________________________
(Name)
By: ________________________
(Authorized Signature)
-2-
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
AFC ENTERPRISES, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
XXXXXXX, XXXXX & CO.
CIBC WOOD GUNDY SECURITIES CORP.
XXXXXXXXX, XXXXXX AND XXXXXXXX
SECURITIES CORPORATION
On behalf of each of the Purchasers,
By: /s/ Xxxxxxx, Sachs & Co.
------------------------------
(Xxxxxxx, Xxxxx & Co.)
