Exhibit 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
OF
ARAMARK CORPORATION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of April 7,
1988, which amends and restates the Registration Rights Agreement dated as of
December 14, 1984 (the "Agreement"), among ARAMARK CORPORATION (formerly The ARA
Group, Inc.), a Delaware corporation (the "Company"), and the persons listed on
the Schedule I attached to this Agreement.
1. Introduction. Each of the persons listed on Schedule I hereto is also a
party to the Company's stockholders agreement (the "Stockholders Agreement") and
will receive shares of the Class A Common Stock, par value $.01 per share
("Class A Common Stock"), in the proposed reclassification (the
"Reclassification") of the Company's capital stock, as more fully described in
the Company's proxy statement dated March 11, 1988.
This Amended and Restated Registration Rights Agreement shall become
effective on the effective date (the "Effective Date") of the Reclassification
upon the issuance of the Class A Common Stock to such persons pursuant to the
terms of the Reclassification. At such time, persons who had been parties to the
Registration Rights Agreement but are not listed on Schedule I hereto will no
longer be parties to this Agreement. Certain capitalized terms used in this
Agreement are defined in Section 3.7.
2. Registration Under Securities Act, Etc.
2.1. Registration on Request.
(a) [Deleted]
(b) Class A Common Stock. At any time or from time to time after the
third anniversary of the Effective Date, upon the written request of
the Holders of at least 33 1/3% of the Registrable Common Stock, the
Company shall, as expeditiously as reasonably possible, use its best
efforts to effect the registration under the Securities Act of shares
of Registrable Common Stock, provided that (x) such Registrable Common
Stock sought to be registered in any one registration has a Market
Price exceeding $25 million and such shares are equal to or greater
than 10% of the number of shares of Class A Common Stock outstanding,
(y) the Company shall not be required to effect more than one
registration under this Section 2.1 in any six month period and (z) the
Company shall not be required to effect more than three registrations
under this Section 2.1.
(c) Form of Written Request; Procedure. Any written request for
registration under this Section 2.1 shall specify the intended method
of disposition of the Registrable Common Stock, and in the case of a
request for the first registration under Section 2.1(b), the name(s) of
the major bracket underwriter(s) proposed to be used to manage the
distribution. Within five business days after receiving such written
notice, the Company shall give all record holders of Registrable Common
Stock notice of such requested registration. Subject to Section 2.1(g),
the Company shall include in the requested
registration the original Holder(s) which made a request under Section
2.1 and all other record holders of Registrable Common Stock which
indicate a desire to participate in such registration by providing
written notice of such desire to be included within ten business days
of the date of the Company notice required by the preceding sentence.
(d) Registration Statement Form. Registrations under this Section 2.1
shall be on such appropriate registration form of the Securities and
Exchange Commission as shall be selected by the Company, and be
reasonably acceptable to the holders of more than 50% of the
Registrable Common Stock so to be disposed of, and as shall permit the
disposition of such Registrable Common Stock in accordance with the
intended method or methods of disposition specified in their request
for such registration. The Company agrees to include in any such
registration statement all information which Holders of Registrable
Common Stock being registered shall reasonably request.
(e) Expenses. The Company will pay all Registration Expenses in
connection with any registration duly requested under Section 2.1.
(f) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 will not be deemed to have been effected
(i) unless it has become effective and the Holders requesting
registration have included in such registration statement at least 75%
of the Registrable Common Stock which they have requested to be
registered, provided that a registration which does not become
effective after the Company has filed a registration statement with
respect thereto solely by reason of the refusal to proceed of the
holders of Registrable Common Stock who initially requested
registration of Registrable Common Stock shall be deemed to have been
effected by the Company at the request of such Holders, or (ii) if
after it has become effective, such registration is interfered with by
any stop order, injunction or other order or requirement of the
Securities and Exchange Commission or other governmental agency or of
any court.
(g) Priority in Requested Registrations. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, and the
managing underwriter shall advise the Company in writing (with a copy
to each holder of Registrable Common Stock requesting registration or
inclusion) that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Company
which are not Registrable Common Stock) exceeds the number which can be
sold in such offering, the Company will include in such registration to
the extent of the number which the Company is so advised can be sold in
such offering (i) first, Registrable Common Stock requested to be
included in such registration by the Holder or Holders of Registrable
Common Stock, pro rata among such Holders on the basis of the number of
Registrable Common Stock requested to be included by such Holders, and
(ii) second, securities the Company proposes to sell and other
securities of the Company included in such registration by the holders
thereof.
(h) If the Holder disapproves of the terms of any such underwritten
public offering, such person may elect to withdraw therefrom by written
notice to the Company and the
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
underwriter, which notice, to be effective, must be received by the
Company at least two business days before the anticipated effective
date of the Registration Statement. The Registrable Common Stock so
withdrawn from such underwritten public offering shall also be
withdrawn from such registration; provided, however, that if by the
withdrawal of such Registrable Common Stock a greater number of shares
of Registrable Common Stock held by other selling holders may be
included in such registration (up to the maximum of any limitation
imposed by the underwriters), then the Company shall include in such
registration in place of such withdrawn Registrable Common Stock such
additional Registrable Common Stock held by other selling holders whose
Registrable Common Stock were excluded pursuant to limitation by the
underwriter pursuant to Section 2(g) in the same proportion as such
Registrable Common Stock were excluded pursuant to such underwriter
limitation (with no more Registrable Common Stock being so included
than were withdrawn).
2.2 Incidental Registration.
(a) If the Company at any time or from time to time proposes to
register its Class A Common Stock or its Class A Common Stock, par
value $1.00 per share (such Class B Common Stock together with the
Class A Common Stock, the "Common Stock") under the Securities Act
(other than a registration in connection with an acquisition in a
manner which would not permit registration of Registrable Common Stock
for sale to the public, other than a registration relating to a stock
option plan, stock purchase plan, managing directors' plan, savings or
similar plan and other than pursuant to Section 2.1), whether or not
for sale for its own account, the Company will each such time give
prompt written notice to all holders of Registrable Common Stock of its
intention to do so and of such holders' rights under this Section 2.2.
Subject to Section 2.4(c), upon the written request of any such holder
made within ten business days after the receipt of any such notice
(which request shall specify the Registrable Common Stock intended to
be disposed of by such holder and shall state the intended method of
disposition thereof), the Company will effect the registration under
the Securities Act of all Registrable Common Stock which the Company
has been so requested to register by the holders of Registrable Common
Stock, to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Registrable
Common Stock so to be registered, by inclusion of such Registrable
Common Stock in the registration statement which covers the Common
Stock which the Company proposes to register, provided that if, at any
time after giving written notice of its intention to register any
securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company
shall determine for any reason to delay registering such securities,
the Company may, at its election, give written notice of such
determination to each holder of Registrable Common Stock and,
thereupon, shall be permitted to delay registering any Registrable
Common Stock for the same period as the delay in registering such other
securities.
(b) No registration effected pursuant to a request or requests referred
to in this Section 2.2 shall be deemed to have been effected pursuant
to Section 2.1. The Company will pay
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
all Registration Expenses in connection with each registration of
Registrable Common Stock requested pursuant to this Section 2.2.
2.3 Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Common Stock under the Securities Act as
provided in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission (in
the case of a registration pursuant to Section 2.1, such filing to be
made within twenty-one business days after the initial request of one
or more holders of Registrable Common Stock or in any event as soon
thereafter as possible) the requisite registration statement with
respect to such Registrable Common Stock (including such audited
financial statements as may be required by the Securities Act or the
rules and regulations promulgated thereunder) and use its best efforts
to cause such registration statement to become and remain effective,
provided that before filing such registration statement or any
amendments thereto, the Company will furnish to the holders of
Registrable Common Stock and their counsel which are to be included in
such registration copies of all such documents proposed to be filed,
which documents will be subject to the review of such holders and such
counsel;
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to maintain
the effectiveness of such registration statement during the period
ending upon the earlier of (1) the sale or withdrawal from registration
of all of the shares of Registrable Common Stock covered by such
registration statement and the expiration of the applicable prospectus
delivery period under rule 174 under the Securities Act and (2) ninety
days after the effective date of the registration statement and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
(c) furnish to each seller of Registrable Common Stock covered by such
registration statement and each underwriter, if any, of the securities
being sold by such seller such number of copies of such registration
statement and of each such amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents, as such
seller and underwriter, if any, may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Common Stock covered by such registration statement owned by such
seller;
(d) use its best efforts to register or qualify all Registrable Common
Stock covered by such registration statement under such other
securities laws or blue sky laws of such jurisdictions as any seller
and each underwriter, if any, of the securities being sold by such
seller shall reasonably request, to keep such registrations or
qualifications in effect for so long as the registration statement
remains in effect and do any and all other acts and things
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
which may be necessary or advisable to enable such seller and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Common Stock owned by such seller,
except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
paragraph (d) be obligated to be qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Common Stock covered
by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of
such Registrable Common Stock;
(f) notify each seller of Registrable Common Stock covered by such
registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the Company's
becoming aware that the prospectus included in such registration
statement, as then in effect, includes 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
the light of the circumstances then existing, and promptly prepare and
furnish to such seller and each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Common
Stock, such prospectus shall not include 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;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
beginning with the first day of the Company's first calendar quarter
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11 (a) of the
Securities Act;
(h) provide a transfer agent and registrar for all such Registrable
Common Stock covered by such registration statement not later than the
effective date of such registration statement;
(i) enter into such agreements and take such other actions as sellers
of such Registrable Common Stock holding more than 50% of the shares so
to be sold shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Common Stock;
(j) furnish to each seller of Registrable Common Stock a signed
counterpart, addressed to such seller (and the underwriters, if any),
of (i) an opinion of counsel for the Company, dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing
under the
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
underwriting agreement), reasonably satisfactory in form and substance
to such seller and (ii) a "cold comfort" letter, dated the effective
date of such registration statement (and, if such registration includes
an underwritten public offering, a letter dated the date of the closing
under the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the accountants
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, as such seller (or
the underwriters, if any) may reasonably request;
(k) give the holders of Registrable Common Stock whose Registrable
Common Stock are registered under such registration statement and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the
Securities and Exchange Commission, and each amendment thereof or
supplement thereto, and give each of them such access to its books and
records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the
opinion of the respective counsel of such holders and such
underwriters, to conduct a reasonable investigation within the meaning
of the Securities Act;
(l) use its best efforts to list all Registrable Common Stock covered
by such registration statement on (x) each securities exchange on
which any of the securities of the same class as the Registrable
Common Stock are then listed, or (y) if that class of Registrable
Common Stock is not then listed on a securities exchange, on the
exchange(s) selected by the holders of more than 50% of the shares of
Registrable Common Stock to be registered; and
(m) use its best efforts to increase the authorized number of shares of
Class A Common Stock and, if necessary, to subdivide the outstanding
shares of Class A Common Stock, in both instances as recommended by a
majority of the members of the Board in order to effectuate such public
offering.
Each holder of Registrable Common Stock shall be deemed to have agreed by
acquisition of such Registrable Common Stock that upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
paragraph (f) of this Section 2.3, such holder will forthwith discontinue such
holder's disposition of Registrable Common Stock pursuant to the registration
statement covering such Registrable Common Stock until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by paragraph
(f) of this Section 2.3 and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such holder's possession of the prospectus covering such Registrable
Common Stock current at the time of receipt of such notice. In the event the
Company shall give any such notice, the
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
period mentioned in paragraph (b) of this Section 2.3 shall be extended by the
length of the period from the date of receipt of the notice referenced to above
to and including the date when each seller of any Registrable Common Stock
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by paragraph (f) of this Section
2.3.
If any such registration or comparable statement refers to any holder by
name or otherwise as the holder of any securities of the Company then such
holder shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such holder, to the effect that the holding
by such holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to such holder. The Company may require each seller of Registrable
Common Stock as to which any registration is being effected to furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
If in connection with any registration under Section 2.1 which is proposed
by the Company to be on Form S-3 or any similar short form registration
statement which is a successor to Form S-3, the managing underwriters, if any,
shall advise the Company in writing that in their opinion the use of another
permitted form is of material importance to the success of the offering, then
such registration shall be on such other permitted form.
2.4 Underwritten Offerings.
(a) Selection of Underwriters. If a requested registration pursuant to
Section 2.1 involves an underwritten offering, the managing underwriter
or underwriters thereof shall be designated by the holders of
Registrable Common Stock which first requested a registration under the
Section 2.1 and shall be acceptable to the Company, which shall not
unreasonably withhold its acceptance of such underwriters, provided
that any managing underwriter of an offering of securities registered
pursuant to Section 2.1 shall be a major bracket underwriter.
(b) Underwriting Agreement. If requested by the underwriters for any
underwritten offering by holders of Registrable Common Stock pursuant
to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such
offering, such agreement to be satisfactory in substance and form to
the Company, each such holder and the underwriters and to contain such
representations and warranties by the Company and such other terms as
are customarily contained in agreements of that type used by the
managing underwriter or underwriters, including, without limitation,
indemnities and contribution to the effect and to the extent provided
in Section 2.5. The holders of Registrable Common Stock which are to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part
of the Company to and for the benefit of such underwriters shall also
be made
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
to and for the benefit of such holders of Registrable Common Stock and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent
to the obligations of such holders of Registrable Common Stock. Such
holders of Registrable Common Stock shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements
regarding such holders and such holders' intended methods of
distribution.
(c) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its Common Stock under the Securities Act
as contemplated by Section 2.2 and such securities are to be
distributed by or through one or more underwriters, the Company will,
if requested by any holder of Registrable Common Stock as provided in
Section 2.2, use its best efforts to arrange for such underwriters to
include all the Registrable Common Stock to be offered and sold by such
holder among the securities to be distributed by such underwriters,
provided that if the managing underwriter of such underwritten offering
shall inform the holders of the Registrable Common Stock requesting
such registration and the holders of any other shares of Common Stock
which shall have exercised, in respect of such underwritten offering,
registration rights comparable to the rights under Section 2.2 by
letter of its belief that inclusion in such underwritten distribution
of all or a specified number of shares of such Registrable Common Stock
or of such other shares of Common Stock so requested to be included
would interfere with the successful marketing of the Common Stock by
the underwriters (such writing to state the basis of such belief and
the approximate number of shares of such Registrable Common Stock and
shares of other Common Stock so requested to be included which may be
included in such underwritten offering without such effect), then the
Company may, upon written notice to all holders of such Registrable
Common Stock and of such other shares of Common Stock so requested to
be included, exclude pro rata from such underwritten offering (if and
to the extent stated by such managing underwriter to be necessary to
eliminate such effect) the number of shares of such Registrable Common
Stock and shares of such other Common Stock so requested to be included
the registration of which shall have been requested by each holder of
Registrable Common Stock and by the holders of such other Common Stock
so that the resultant aggregate number of shares of such Registrable
Common Stock and of such other shares of Common Stock so requested to
be included which are included in such underwritten offering shall be
equal to the approximate number of shares stated in such managing
underwriter's letter.
(d) Holdback Agreements. (i) Each holder of Registrable Common Stock
shall be deemed to have agreed by acquisition of such Registrable
Common Stock, if so required by the managing underwriter, not to effect
any public sale or distribution of such Registrable Common Stock during
the seven days prior to and the ninety days after any underwritten
registration pursuant to Sections 2.1 or 2.2 of Common Stock,
respectively, has become effective, except as part of such underwritten
registration, whether or not such holder participates in such
registration, except as the managing underwriter may otherwise consent.
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(ii) The Company agrees (x) if so required by the managing
underwriter, not to effect any public sale or distribution of its
debt securities or its equity securities or securities convertible
into or exchangeable or exercisable for any of such securities
during the seven days prior to and the ninety days after any
underwritten registration of Common Stock, respectively, pursuant
to Section 2.1 has become effective, except as part of such
underwritten registration, except as the managing underwriter may
otherwise consent and except in connection with a stock option
plan, stock purchase plan, managing directors' plan, savings or
similar plan, or an acquisition of a business, merger or exchange
of stock for stock, and (y) to request each holder of its equity
securities or of any securities convertible into or exchangeable or
exercisable for any of such securities, other than employee benefit
plans in each case purchased directly from the Company at any time
after the date of this Agreement (other than in a public offering),
to agree not to effect any such public sale or distribution of such
securities during such period, except as part of any underwritten
registration of Common Stock pursuant to Section 2.1.
2.5 Indemnification.
(a) Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act, the Company
will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Section 2.1 or 2.2, the holder
of any Registrable Common Stock which are covered by such registration
statement, its directors and officers and partners, each other Person
who participates as an underwriter in the offering or sale of such
Registrable Common Stock and each other Person, if any, who controls
such holder or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such holder or any such director or officer
or partner or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities
were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
violation by the Company of any Federal, state or common law rule or
regulation applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse such holder
and each such director, officer, partner, underwriter and controlling
person for any legal or any other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
liability, action or proceeding, provided that (i) the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
prospectus, summary prospectus, amendment or supplement in a reliance
upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically
stating that it is for use in the preparation of such registration
statement, preliminary prospectus, summary of prospectus, amendment or
supplement and (ii) the provisions of this Section 2.5(a) shall not
inure to the benefit of any underwriter or selling stockholder (or any
person controlling such underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of securities by
such underwriter or selling stockholder to any Person if such
underwriter or selling stockholder failed to send or give a copy of the
related prospectus, as the same may be then amended or supplemented, to
such Person within the time required by the Securities Act if the
Company or selling stockholder has previously furnished copies thereof
to such underwriter or selling stockholder. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on
behalf of such holder or any such director, officer, partner,
underwriter or controlling person and shall survive the transfer of
such securities by such holder.
(b) Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Common Stock in any registration
statement filed pursuant to Section 2.3, that the Company shall have
received an undertaking satisfactory to it from the prospective seller
of such securities, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in subdivision (a) of this Section
2.5) the Company, each director of the Company, each officer of the
Company and each other person, if any, who controls the Company within
the meaning of the Securities Act, and each holder of Registrable
Common Stock subject to the provisions of this Agreement and covered by
the Registration Statement, with respect to any statement or alleged
statement of any material fact in or omission or alleged omission to
state a material fact required to be stated in such registration
statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such
seller specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, the
liability of such holder shall be limited to an amount equal to the
proceeds to each such holder of Registrable Common Stock sold as
contemplated herein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Company or any such director, officer, other sellers or controlling
person and shall survive the transfer of such securities by such
seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this
Section 2.5, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action, provided that the failure of
any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of any liabilities it
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
may have to any indemnified party otherwise than under the preceding
subdivisions of this Section 2.5. In case any such action is brought
against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after such
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation. Unless a conflict
of interests exists which would make joint representation contrary to
applicable law or prevailing ethical standards, the indemnifying
parties shall not be liable for the fees and expenses of more than one
counsel for all indemnified parties in connection with any one action,
litigation or proceeding, or in connection with separate but similar or
related actions, litigations or proceedings in the same jurisdiction
arising out of the same general allegations. No indemnifying party
shall consent to entry of any judgment or enter into any settlement
without the consent of the indemnified party or which does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability, or
a covenant not to ▇▇▇, in respect of such claim or litigation. No
indemnified party shall consent to entry of any judgment or enter into
any settlement of any such action the defense of which has been assumed
by an indemnifying party without the consent of such indemnifying
party.
(d) Contribution. The Company will use its best efforts to include a
section in the underwriting agreement substantially to the following
effect:
If the indemnification provided for in this Section 2.5 is unavailable
to an indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein because not permitted by applicable law, 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 benefits
received by the Company on the one hand and the underwriters on the other from
the offering of the Registrable Common Stock to which such loss, claim, damage
or liability (or action in respect thereof) relates. If however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if such indemnification is unavailable because the indemnified party
failed to give the notice required under subsection (c) above or is not entitled
to receive the indemnification provided for in subsection (a) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the underwriters on the other 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 benefits received by the Company on the one hand and such underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
commissions received by such underwriters. The relative fault shall be
determined by reference to, among other things, whether the indemnified party
failed to give the notice required under subsection (c) above, including the
consequences of such failure, and whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission including, with respect to any
underwriter, the extent to which such losses, claims, damages or liabilities (or
actions in respect thereof) with respect to any preliminary prospectus result
from the fact that such underwriter sold Registrable Common Stock to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the prospectus (excluding documents incorporated by
reference) or of the prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such underwriter. The Company and the underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the underwriters 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 above in
this subsection (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 in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Registrable Common Stock 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the underwriters
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not
joint.
(e) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 2.5 (with appropriate
modifications) shall be given by the Company and each seller of
Registrable Common Stock with respect to any required registration or
other qualification of such Registrable Common Stock under any federal
or state law or regulation of any governmental authority, other than
the Securities Act.
(f) Payments. The indemnification required by this Section 2.5 shall be
made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. General.
3.1 Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act in respect of Class
A Common Stock, the Company covenants to the holders of Registrable Common Stock
that it will timely file the reports required to be filed by it under the
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Securities Act or the Exchange Act (including but not limited to the reports
under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)
(1) of Rule 144 adopted by the Securities and Exchange Commission under the
Securities Act) and the rules and regulations adopted by the Securities and
Exchange Commission thereunder, and will take such further action as any holder
of Registrable Common Stock may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Securities and Exchange Commission. Upon the request of any holder of
Registrable Common Stock, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
3.2 Nominees for Beneficial Owners. In the event that Registrable Common
Stock are held by a nominee for the beneficial owner thereof the beneficial
owner thereof may, at its option, be treated as the holder of such Registrable
Common Stock for purposes of any request or other action by any holder or
holders of Registrable Common Stock pursuant to this Agreement (or any
determination of any number or percentage of shares constituting Registrable
Common Stock held by any holder or holders of Registrable Common Stock
contemplated by this Agreement).
3.3 Successor and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns. If any transferee of any holder of Registrable Common Stock shall
acquire Registrable Common Stock in any manner, whether by operation of law or
otherwise, such Registrable Common Stock shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Common
Stock, such person shall be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement.
3.4 Stockholders Agreement; Other Registration Rights. Notwithstanding
anything above to the contrary, all transfers of Registrable Common Stock
subject to the provisions of the Stockholders Agreement shall, during the term
thereof be made in accordance with said provisions. The Company covenants and
agrees that it will not grant registration rights with respect to Registrable
Common Stock or any other securities which would materially impair the
registration rights contained in this Agreement applicable to the parties hereto
and their permitted transferees for Registrable Common Stock, provided, however,
that the foregoing shall not preclude the Company from granting registration
rights to holders of Common Stock issuable upon conversion of preferred stock of
the Company.
3.5 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the holders of 50% or more of the
Registrable Common Stock. Each holder of any shares of Registrable Common Stock
at the time or thereafter outstanding shall be bound by any consent authorized
by this Section 3.5, whether or not such shares of Common Stock shall have been
marked to indicate such consent.
3.6 Notices. Except as otherwise provided in this Agreement, notices and
other communications under this Agreement shall be in writing and shall be
delivered by hand, or sent by registered or certified mail, postage prepaid,
with return receipt requested, properly addressed as set
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
forth below, or sent by telegram, telex, telecopy or similar form of
telecommunication, and shall be deemed to have been given when received. Any
such notice or other communication shall be addressed (a) if to a party other
than the Company, or if to any subsequent holder of any of the shares of
Registrable Common Stock issued hereunder, to such party or subsequent holder at
such address as is shown on the stock transfer books of the Company or (b) if to
the Company, to ARA Holding Company, ARAMARK Tower, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or to such other
address and/or to the attention of such other officer as the Company shall have
furnished to you and each such other holder in writing.
3.7 Certain Definitions. As used in this Agreement, the following terms
have the following respective meanings:
Class A Common Stock: As defined in Section 1 of this Agreement.
Common Stock: As defined in Section 2.2 of this Agreement.
Company: As defined in the first paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Securities and
Exchange Commission thereunder, all as the same shall be amended from
time to time.
Holder: Shall mean any person who, on the date hereof owns any of the
Registrable Common Stock and such of its respective successors and
assigns who acquire Registrable Common Stock directly or indirectly,
from Holders and who agree in writing with the Company, if the Company
shall so request, to acquire and hold the Registrable Common Stock
subject to all the restrictions hereof, but in no event shall "Holder"
include any transferee of Registrable Common Stock pursuant to sales
made under a registration statement filed under the Securities Act of
1933 as amended (the "Securities Act"), or pursuant to any other public
offering of such class of Registrable Common Stock under Rule 144
promulgated under the Securities Act.
Market Price: The last sale price, regular way, of the Class A Common
Stock on any date, or, if there shall have been no sale on any such
date, the average of the closing bid and asked prices of the Class A
Common Stock on such date, in each case as officially reported on the
principal national securities exchange on which the Class A Common
Stock is at the time listed or admitted to trading, or if the Class A
Common Stock is not then listed or admitted to trading on any national
securities exchange but is designated as a national market system
security by the NASD, the last trading price of the Class A Common
Stock on such date, or if there shall have been no trade on such date
or if the Class A Common Stock is not so designated, the average of the
closing bid and asked prices of the Class A Common Stock on such date
as shown by the NASD automated quotation system. If at any time the
Class A Common Stock is not listed on any exchange or quoted in the
domestic over-the-counter market, the "Market Price" shall be deemed to
be the fair value thereof as determined in good faith by an independent
brokerage firm selected by the Company and
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
satisfactory to holders of a majority of the Registrable Common Stock
in respect of which a request for registration under Section 2.1 has
been made, as of a date which is within fifteen days preceding the date
as of which the determination is to be made.
NASD: The National Association of Securities Dealers, Inc.
Person: A corporation, an association, a partnership, an organization,
a business, an individual, a government or political subdivision
thereof or a governmental agency.
Registrable Common Stock: The shares of Class A Common Stock issued to
parties to this Agreement pursuant to the Reclassification, and any
securities issued or issuable with respect to such shares of Class A
Common Stock by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise, except for shares of Class A
Common Stock which have been distributed to the public pursuant to a
registration statement or Rule 144 (or any successor provision)
promulgated under the Securities Act.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2, including, without
limitation, all registration, filing and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all printing
expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants,
including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance, and
any fees and disbursements of underwriters customarily paid by issuers
or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any, provided that, in any case
where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, and shall not include auditing fees,
premiums or other expenses relating to liability insurance required by
underwriters or the Company, or other expenses for the preparation of
financial statements or other data normally prepared by the Company in
the ordinary course of its business or which the Company would have
incurred in any event.
Securities Act: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Securities and Exchange
Commission thereunder, all as the same shall be amended from time to
time.
Securities and Exchange Commission: The U.S. 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.
Stockholders Agreement: The Company's Stockholders Agreement, dated as
of the date of this Agreement as the same may be amended or restated
from time to time.
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
3.8 Injunctive Relief: It is acknowledged that it will be impossible to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
3.9 Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties thereto, whether so expressed or not. The provisions of this Agreement
are for the sole benefit of the parties hereto and, in the case of Section 2.5
hereof the other indemnified parties, and their heirs, executors,
administrators, legal representatives, successors and assigns, and they shall
not be construed as conferring any rights or any other persons. This Agreement
embodies the entire agreement and understanding between the Company and each
other party hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. This Agreement shall be construed and
enforced in accordance with and governed by the law of the State of Delaware,
without reference to the principles of the conflicts of laws thereof. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
[Signature Pages and Schedule Omitted]
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
