Exhibit 10.12
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement (the "Amendment") is
entered into this 6 day of May, 1994 by and among Xxxxxx'x Grand Ice Cream,
Inc., a Delaware corporation (the "Company"), and Trustees of General Electric
Pension Trust, a New York common law trust ("GE Pension"), GE Investment
Private Placement Partners, I, a Delaware limited partnership ("GEIPPP") and
General Electric Capital Corporation, a New York corporation (collectively the
"Investors").
Recitals
A. The Company entered into a Registration Rights Agreement dated June 30,
1993 with the Investors (the "Agreement"), pursuant to which the Investors
acquired the right under certain circumstances to cause securities of the
Company held by them to be registered by the Company under the Securities Act
of 1933.
B. The Company and Investors now desire to amend the Agreement as set forth
herein.
1. Amendments.
1.1. Section 2.2(a) is hereby amended by adding the following at
the end of such section:
"Notwithstanding anything to the contrary in this Section
2.2(a), if any such proposal by the Company to register any
of its securities was as a result of the exercise of a
demand registration right under Section 3 of the Nestle
Registration Rights Agreement, then the Company shall not be
obligated to include any Registrable Securities in any such
registration without the consent of the Nestle Holders;
provided, however, that such consent shall be deemed to have
been given if the Nestle Holders allow any securities of the
Company other than 'Registrable Securities' (as defined in
the Nestle Registration Rights Agreement) to be included in
such registration."
1.2. Subsection 2.2(b) is hereby amended to read in its entirety
as follows:
"(b) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the
Company by letter of its belief that the number or type of
Registrable Securities
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requested to be included in such registration would materially
adversely affect such offering, then the Company will include in
such registration, to the extent of the number and type which
the Company is so advised can be sold in (or during the time of)
such offering (i) first, all securities proposed by the Company
to be sold for its own account, if any; (ii) second, and only if
all the securities proposed by the Company to be sold for its
own account have been so included, such Registrable Securities
and securities of the Company requested for inclusion in such
registration pursuant to the exercise of piggyback registration
rights under Section 4(a) of the Nestle Registration Rights
Agreement (the 'Nestle Securities'), pro rata among the holders
of the Registrable Securities and Nestle Securities on the basis
of the respective percentages of the total amount of securities
requested to be so included by such holders which are
represented by Registrable Securities, on the one hand, and
Nestle Securities, on the other hand; and (iii) third, and only
if all of the Registrable Securities and Nestle Securities have
been included in such registration, any other securities of the
Company requested to be included in such registration; provided,
however, that if such registration was as a result of the
exercise of a demand registration right pursuant to Section 3 of
the Nestle Registration Rights Agreement, and the Nestle Holders
have consented to the inclusion of Registrable Securities in
such offering, then the securities to be included in such
registration shall be selected, after all 'Registrable
Securities' (as defined in the Nestle Registration Rights
Agreement) originally proposed to be included in such
registration have been so included, (y) first, from the
Registrable Securities and (z) second, and only if all the
Registrable Securities have been included in such registration,
from any other securities eligible for inclusion in such
registration."
1.3 Subsection 2.4(c) is hereby amended to read in its entirety as
follows:
"(c) Holdback Agreements. (i) Each holder of Registrable
Securities agrees, in each of the instances set out below, not
to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any
Registrable Securities, and not to effect any such public sale
or distribution of any other equity
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security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company
during the 15 days prior to, and during the 90-day period (or such
longer period as may be reasonably requested by the underwriter, if any,
of an offering) beginning on, the effective date of a registration
statement (except as part of such registration) provided that each
holder of Registrable Securities has received written notice of such
registration at least 15 days prior to such effective date:
(1) in the case of an underwritten public offering in which
any such holder is participating, if requested by the managing
underwriters of such underwritten public offering,
(2) in the case of an underwritten public offering in which
any such holder is not participating and which is initiated
pursuant to the exercise of demand registration rights under
Section 3 of the Nestle Registration Rights Agreement, if
requested by the managing underwriters of such underwritten
public offering,
(3) in the case of a registration pursuant to Section 2.1
hereof in which any such holder is participating and which is not
an underwritten public offering, if requested by the holders of a
majority of the Registrable Securities requesting such
registration,
(4) in the case of an incidental registration pursuant to
Section 2.2 hereof in which any such holder is participating and
which is not an underwritten public offering, if requested by the
holders of a majority of the securities requesting such
registration, or
(5) in the case of a registration in which any such holder
is not participating and which is initiated pursuant to the
exercise of demand registration rights under Section 3 of the
Nestle Registration Rights Agreement and which is not an
underwritten public offering, if requested by the Nestle Holders.
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(ii) In the event of any registration of Registrable Securities
pursuant to Section 2.1 or 2.2 hereof, the Company agrees (i) not to
effect any public or private sale or distribution of any of its equity
securities or of any equity security convertible into or exchangeable
or exercisable for any equity security of the Company (other than any
such sale or distribution of such securities in connection with any
merger or consolidation by the Company or any subsidiary of the
Company of the capital stock or substantially all the assets of any
other person or in connection with an employee stock option or other
benefit plan) during the 15 days prior to, and during the 90-day
period beginning on, the effective date of such registration statement
(except as part of such registration) to the extent the Company is
timely notified in writing by a holder of the Registrable Securities
or the managing underwriters of any such registration, and (ii) that
any agreement entered into after the date of this Agreement pursuant
to which the Company issues or agrees to issue any privately placed
equity securities shall contain a provision under which holder of such
securities agree not to effect any public sale or distribution of any
such securities during the period referred to in the foregoing clause
(i), including any sale pursuant to Rule 144 under the Securities Act
(except as part of such registration, if permitted)."
1.4. Section 3 of the Agreement is hereby amended by adding the following
definitions in their correct alphabetical position:
"'Nestle' means Nestle Holdings, Inc., a Delaware corporation."
"'Nestle Holders' means the selling holders of a majority of all
'Registrable Securities' (as defined in the Nestle Registration
Rights Agreement) included in a demand registration under Section 3
of the Nestle Registration Rights Agreement."
"'Nestle Registration Rights Agreement' means the Registration Rights
Agreement dated May __, 1994 between the Company and Nestle as in
effect on such date."
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2. Miscellaneous.
2.1. Except as expressly amended herein, all terms, covenants and
provisions of the Agreement are and shall remain in full force and effect
and all references therein to such Agreement shall henceforth refer to the
Agreement as amended by this Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Agreement.
2.2. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No third
party beneficiaries are intended in connection with this Amendment.
2.3. This Amendment shall be governed by and construed in accordance
with the law of the State of Delaware.
2.4. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Amendment to be executed and delivered as of the date first above written.
XXXXXX'X GRAND ICE CREAM, INC. TRUSTEES OF GENERAL ELECTRIC
PENSION TRUST
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXX X. XXXXX
--------------------------------- ---------------------------------
Title: Vice President Title: Trustee
------------------------------ ------------------------------
GENERAL ELECTRIC CAPITAL GE INVESTMENT PRIVATE PLACEMENT
CORPORATION PARTNERS I
By: /s/ XXXX X. XXXXXXX By: GE Investment Management
--------------------------------- Incorporated, its
Title: Department Operations General Partner
Manager
------------------------------ By: /s/ XXXX X. XXXXX
-----------------------------
Title: Trustee
--------------------------
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