Exhibit 4.5
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of , 2003 (this "Agreement"),
among Volume Services America Holdings, Inc., a Delaware corporation (the
"Company"), VSI Management Direct L.P., a Delaware limited partnership
(including any successors, assigns and Transferees (as defined below) thereof,
collectively "VSI"), BCP Volume L.P., a Delaware limited partnership, BCP
Offshore Volume L.P., a Cayman Islands limited partnership, (BCP Volume L.P. and
BCP Offshore Volume L.P., in each case, including any successors, assigns and
Transferees thereof, collectively "Blackstone"), Xxxxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxx and Xxxxx X. Xxxxxxxxxx (including any heirs, personal representatives,
successors, assigns and Transferees thereof, "Management" and each a "member of
Management") and Recreational Services L.L.C., a Delaware limited liability
company (including successors, assigns and Transferees thereof, collectively
"Recreational Services"); VSI, Blackstone, Management and Recreational Services,
collectively, the "Holders."
BACKGROUND
1. Presently, VSI, Blackstone and Recreational Services are the
beneficial holders of shares of Common Stock (as defined below) of the
Company.
2. The Company has effected an initial public offering of Income
Depositary Securities ("IDSs") representing shares of the Company's Common Stock
and $ aggregate principal amount of % subordinated notes due 2013 of the
Company ("Subordinated Notes") pursuant to an effective registration statement
under the Securities Act (as defined herein) in the United States and pursuant
to a long form prospectus or any amendment or supplement thereto, in the English
and French languages, in Canada.
3. Management will own IDSs and the other Holders will continue to own
a portion of their shares of Common Stock. Upon any sale of such shares of
Common Stock by the other Holders, at the option of such Holders, the Company
shall exchange with the purchasers thereof a portion of such shares of Common
Stock for an amount of Subordinated Notes such that the purchasers thereof shall
be able to combine the applicable number of shares of Common Stock and principal
amount of Subordinated Notes to form integral numbers of IDSs.
4. The Company has agreed to provide certain registration rights to the
Holders with respect to their shares of Common Stock (which include the exchange
rights described in paragraph 3 above) and any IDSs they hold upon the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Agreement" shall have the meaning specified in the introductory
paragraph hereto.
"Blackstone" shall have the meaning specified in the introductory
paragraph hereto.
"Canadian Prospectus" shall mean a prospectus (including a short
form prospectus) prepared in accordance with applicable Canadian
Securities Laws for the purposes of qualifying securities for distribution
or distribution to the public, as the case may be, in any province or
territory of Canada.
"Canadian Securities Law" shall mean statutes and regulations
applicable to the trading of securities in any province or territory of
Canada including applicable rules, policy statements and blanket rulings
and orders promulgated by Canadian securities regulatory authorities.
"Common Stock" means the common shares, par value $0.01 per share,
of the Company and any securities issued or distributed in respect
thereof, or in substitution therefor, in connection with any stock split,
dividend, spin-off or combination, or any reclassification,
recapitalization, merger, consolidation, exchange or other similar
reorganization or business combination.
"Common Stock Equivalents" means any stock, warrants, rights, calls,
options, debt or other securities exchangeable or exercisable for or
convertible into Common Stock.
"Company" shall have the meaning specified in the introductory
paragraph hereto.
"Company Offering" shall have the meaning specified in Section 2.6
hereto.
"Delay Notice" shall have the meaning specified in Section 2.6(b)
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a reference to
a particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Governmental Entity" shall mean any court, department, body, board,
bureau, administrative agency or commission or other governmental
authority or instrumentality, whether in the United States or Canada.
"Holders" shall have the meaning specified in the introductory
paragraph hereto.
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"IDSs" shall have the meaning specified in the Recitals hereto.
"Information Delay Notice" shall have the meaning specified in
Section 2.6(b) hereto.
"Inspectors" shall have the meaning specified in Section 5.1(l)
hereto.
"Majority Holders" shall mean the Holders of a majority of the
voting power of all such securities (including IDSs) held by such Holders;
provided that all such securities shall be treated as having the voting
rights of any underlying securities.
"Majority Sellers" means a majority (based on the number of
Registrable Securities owned) of the Holders eligible to sell pursuant to
this Agreement.
"Management" shall have the meaning specified in the introductory
paragraph hereto.
"NASD" shall have the meaning specified in this Section 1.1 (under
"Registration Expenses" below).
"Person" means an individual, corporation, limited liability
company, association, partnership, group (as defined in Section 13(d)(3)
of the Exchange Act), trust, joint venture, business trust or
unincorporated organization, Governmental Entity or any other entity of
any nature whatsoever.
"register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act and the effectiveness of such registration
statement. In addition, unless inconsistent with the context: (i) the term
"registration" and any references to the act of registering include the
qualification under Canadian Securities Laws of a Canadian Prospectus in
respect of a distribution or distribution to the public, as the case may
be, of securities; (ii) the term "registered" as applied to any securities
includes a distribution or distribution to the public, as the case may be,
of securities so qualified; (iii) the term "registration statement"
includes a Canadian Prospectus; (iv) and reference to a registration
statement having become effective, or similar references, shall include a
Canadian Prospectus for which a final receipt has been obtained from the
relevant Canadian securities regulatory authorities; and (v) the
provisions of this Agreement shall be applied, mutatis mutandis, to any
proposed distribution of securities hereunder in any province or territory
of Canada or to which the prospectus requirements under any of the
Canadian Securities Laws shall otherwise apply.
"Recreational Services" shall have the meaning specified in the
introductory paragraph hereto.
"Registrable Securities" shall mean Common Stock, IDSs, Subordinated
Notes and any shares of Common Stock owned or to be acquired upon
conversion, exercise or exchange of Common Stock Equivalents, in each case
now or hereafter owned by the
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Holders or any Transferee thereof. As to any particular Registrable
Securities, once issued, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale by the applicable Holder of such securities has become effective
under the Securities Act or when a prospectus has been receipted under the
applicable Canadian Securities Laws, and such securities have been
disposed of in accordance with such registration statement or prospectus,
as the case may be, (ii) such securities have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act or equivalent provisions under Canadian Securities Laws, as
applicable, (iii) such securities have been otherwise transferred, new
certificates for such securities not bearing a legend restricting further
transfer have been delivered by the Company and subsequent disposition of
such securities does not require registration or qualification of such
securities under the Securities Act, applicable Canadian Securities Laws
or any state securities or blue sky law then in force, or (iv) such
securities have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including all
SEC, stock exchange or quotation system, National Association of
Securities Dealers, Inc. (the "NASD"), Canadian securities regulatory
authorities and Canadian stock exchange registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger, telephone
and delivery expenses, the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange
or quotation system, fees and disbursements of counsel for the Company and
all independent certified public accountants (including the expenses of
any annual audit, special audit and "cold comfort" letters required by or
incident to such performance and compliance), securities laws liability
insurance (if the Company so desires), the fees and disbursements of
underwriters (including all fees and expenses of any "qualified
independent underwriter" required by the rules of the NASD) customarily
paid by issuers or sellers of securities, the expenses customarily borne
by the issuers of securities in a "road show" presentation to potential
investors, the reasonable fees and disbursements of one legal counsel for
the selling Holders in each registration (as selected by the Majority
Sellers), the reasonable fees and expenses of any special experts retained
by the Company in connection with such registration, and fees and expenses
of other persons retained by the Company (but not including any
underwriting discounts or commissions (which shall be paid or borne by the
selling Holder) or transfer taxes, if any, attributable to the sale of
Registrable Securities) and other reasonable out-of-pocket expenses of the
Holders.
"Requesting Party" shall have the meaning specified in Section 2.1
hereto.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the
Exchange Act.
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"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Shelf Registration" shall have the meaning specified in Section 2.4
hereto.
"Subordinated Notes" shall have the meaning specified in the
Recitals hereto.
"Transaction Delay Notice" shall have the meaning specified in
Section 2.6(a) hereto.
"Transferee" means any Person to whom any Holder or any Transferee
thereof transfers Registrable Securities, including any Person who
purchases shares of Common Stock from the Holders and receives
Subordinated Notes from the Company in exchange for a portion of the
Common Stock purchased from the Holders.
ARTICLE II
DEMAND REGISTRATION
2.1 Request for Registration. After compliance with the procedures set
forth herein, upon the written request of any Holder (other than Management)
(the "Requesting Party"), at any time after, 2004 [insert date 180 days
after effectiveness] (and subject to the procedures of this paragraph),
requesting that the Company effect the registration under the Securities Act
and/or applicable Canadian Securities Laws of all or part of the Registrable
Securities and specifying the intended method of disposition thereof, and
provided that such Holder beneficially owns more than 1% of the outstanding
shares of Common Stock or shares or securities exchangeable for or convertible
into more than 1% of the outstanding shares of Common Stock, the Company will
use its best efforts to effect the registration under the Securities Act and
applicable Canadian Securities Laws of such Registrable Securities (which
registration shall also include any Registrable Securities requested by the
other Holders to be included in such registration request made by the Requesting
Party). Prior to making such request, the Requesting Party shall notify the
other Holders (other than Management) of its intent to make such request and,
upon the affirmative decision of the Majority Holders (other than Management) to
proceed with such request, afford such other Holders the opportunity to include
Registrable Securities in such request. The Requesting Party, any other selling
Holder and the Company shall consult with one another at the beginning of, and
throughout, the registration process to coordinate the timing of the proposed
offering, among other things, with respect to the existence of any material
business combination discussions that may be ongoing. So long as the IDSs and/or
underlying Common Stock and Subordinated Notes are listed and/or registered in
both the United States and Canada, any such demand for registration and the
intended method of disposition thereof shall take the form of a dual offering in
the United States and Canada similar to the initial public offering of the
Company, or any other form as specified by the Majority Sellers. Notwithstanding
the foregoing, in no event shall the Company have any obligation to effect an
underwritten public offering under this Section 2.1 unless the amount of the
Registrable Securities requested to be included in such offering would result in
initial aggregate proceeds (determined at the time of the time of the initial
filing of the registration statement relating thereto) in excess of $10,000,000;
provided, however, that if the
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Holders have at least one demand registration right remaining, the Holders may
make a demand registration pursuant to this Section 2.1 if such demand
registration is for the remaining shares of Registrable Securities of such
Holders, even if such offering would result in initial aggregate proceeds
(determined at the time of the time of the initial filing of the registration
statement relating thereto) less than $10,000,000.
Notwithstanding anything in this Article II to the contrary, in no
event will the Holders collectively be entitled to more than three registrations
pursuant to this Section 2.1, except that the following shall not constitute a
registration for this purpose: a registration so requested (i) that is not
deemed to have been effected pursuant to Section 2.3 or (ii) where the number of
Registrable Securities included by the Holders in such registration and sold
pursuant thereto is less than 75% of the number of shares of Registrable
Securities sought to be included by the Holders in such registration.
2.2 Registration Statement Form. If any registration requested pursuant
to this Article II which is proposed by the Company to be effected by the filing
of a registration statement on Form S-3 (or any successor or similar short-form
registration statement) and any Canadian equivalent shall be in connection with
an underwritten public offering, and if the managing underwriter shall advise
the Company in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of such proposed
offering, then such registration shall be effected on such other form.
The Company agrees to include in any registration statement all
information which, in the reasonable opinion of counsel to the underwriters, if
any, the selling Holders or the Company, is required to be included.
2.3 Effective Registration Statement. A registration requested pursuant
to this Article II shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has become
effective and remained effective in compliance with the provisions of the
Securities Act and applicable Canadian securities laws for at least six months
with respect to the disposition of all Registrable Securities covered by such
registration statement or, if earlier, until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition thereof set forth in such registration statement, other
than primarily as a result of acts or omissions of any selling Holder or any
authorized agent thereof;
(ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC, the applicable Canadian securities regulatory authorities or other
Governmental Entity for any reason not attributable to any selling Holder or any
of their Affiliates and has not thereafter become effective; or
(iii) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not
satisfied or waived.
2.4 Shelf Registration. If the Company has used and is then generally
using registration statements pursuant to Rule 415 under the Securities Act and
pursuant to an equivalent provision
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under Canadian Securities Laws, including National instrument 44-102, as
applicable (the "Shelf Registration") for the sale of IDSs or Common Stock, the
Majority Sellers shall be permitted to request that any registration under this
Article II be made under a Shelf Registration. The Company shall use its
reasonable best efforts to keep such Shelf Registration continuously effective
for the period beginning on the date on which the Shelf Registration is declared
effective and ending on the first date that there are no Registrable Securities
covered by such registration. During the period during which the Shelf
Registration is effective, the Company shall supplement or make amendments to
the Shelf Registration, if required by the Securities Act or Canadian Securities
Laws or if reasonably requested by the Majority Sellers or an underwriter of
Registrable Securities, including to reflect any specific plan of distribution
or method of sale, and shall use its reasonable best efforts to have such
supplements and amendments declared effective, if required, as soon as
practicable after filing.
2.5 Priority in Requested Registrations. If a requested registration
pursuant to this Article II involves an underwritten offering and the managing
underwriter (in consultation with the underwriter appointed by the Majority
Sellers pursuant to Section 2.8 below) advises the Company and the Holders in
writing that, in its opinion, the number of securities requested to be included
in such registration by all Holders, the Company and other holders (including
securities of the Company which are not Registrable Securities and which the
holder thereof has the right to include in any such registration) exceeds the
largest number of securities which can be sold without reasonably expecting to
have an adverse effect on such offering, including the price at which such
securities can be sold, the number of such securities to be included in such
registration shall be reduced to such extent, and the Company shall include in
such registration such maximum number of securities as follows: (a) first, all
the Registrable Securities requested to be included in such registration by the
Holders, (b) second, to the extent that the number of Registrable Securities
which the Holders have requested to be included in such registration is less
than the number of securities which the Company has been advised can be sold in
such offering without having the adverse effect referred to above, all the
securities which the Company proposes to sell for its own account and (c) third,
to the extent that the number of securities which the Holders have requested to
be included in such registration and the number of securities which the Company
proposes to sell for its own account is, in the aggregate, less than the number
of securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the number of securities
requested to be included in such registration by all other holders thereof which
number shall be limited to such extent, and, subject to any rights of such other
holders, shall be allocated pro rata among all such holders on the basis of the
relative number of such securities then held by each such holder; provided that
any such amount thereby allocated to any such holder that exceeds such holder's
request shall be reallocated among the remaining requesting holders in like
manner. If any Holder advises the managing underwriter of any underwritten
offering that the Registrable Securities and other securities covered by the
registration statement cannot be sold in such offering within a price range
acceptable to such Holder, then such Holder shall have the right to exclude all
or any portion of its Registrable Securities from registration.
2.6 Postponements in Requested Registrations. (a) If, upon receipt of a
registration request pursuant to Section 2.1, the Company is advised in writing
by a nationally recognized investment banking firm in the United States or
Canada selected by the Company that, in such firm's opinion, a registration by
the Company at the time and on the terms requested would adversely affect any
public offering of securities of the Company (other than in connection with
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employee benefit and similar plans) (a "Company Offering") with respect to which
the Company has commenced preparations for a registration prior to the receipt
of a registration request pursuant to Section 2.1 and the Company furnishes the
Holders with a certificate signed by the Chief Executive Officer or Chief
Financial Officer of the Company to such effect (the "Transaction Delay Notice")
promptly after such request, the Company shall not be required to effect a
registration pursuant to Section 2.1 until the earliest of (i) 30 days after the
completion of such Company Offering, (ii) promptly after the abandonment of such
Company Offering or (iii) 90 days after the date of the Transaction Delay
Notice; provided that in any event the Company shall not be required to effect
any registration prior to the termination, waiver or reduction of any "blackout
period" required by the underwriters to be applicable to the Holders in
connection with any Company Offering; provided further that in no event shall
the Company delay such registration for more than 180 days.
(b) If upon receipt of a registration request pursuant to Section
2.1 or while a registration request pursuant to Section 2.1 is pending, the
Company determines in its good faith judgment after consultation with its
securities counsel that the filing of a registration statement or any amendment
thereto would require disclosure of material information which the Company has a
bona fide business purpose for preserving as confidential and the Company
provides the Holders written notice (the "Information Delay Notice" and,
together with the Transaction Delay Notice, the "Delay Notice") thereof promptly
after the Company makes such determination, which shall be made promptly after
the receipt of any request, the Company shall not be required to comply with its
obligations under Section 2.1 until the earlier of (i) the date upon which such
material information is disclosed to the public or ceases to be material or (ii)
30 days after the Holders' receipt of such notice.
(c) Notwithstanding the foregoing provisions of this Section 2.6,
the Company shall be entitled to serve only one Delay Notice (A) within any
period of 180 consecutive days or (B) with respect to any two consecutive
registrations requested pursuant to Section 2.1.
2.7 Expenses. The Company will pay all Registration Expenses in
connection with the registrations requested pursuant to Section 2.1.
2.8 Selection of Underwriters. If in any requested registration pursuant
to Article II the Majority Sellers request that such registration shall be in
the form of an underwritten offering, such offering shall be an underwritten
offering and the Majority Sellers shall have the right to select any investment
banker and manager or co-managers to administer the offering, subject to the
consent of the Company (which shall not be unreasonably withheld or delayed).
The Company and all participating Holders shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting, as well as all other documents customary in similar
offerings, including underwriting agreements, custody agreements, powers of
attorney, and indemnification agreements.
ARTICLE III
INCIDENTAL REGISTRATION
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3.1 Right to Include Registrable Securities. If the Company proposes to
register any of its IDSs, Common Stock, Common Stock Equivalents, Subordinated
Notes or other securities or any security convertible into or exchangeable or
exercisable for any Common Stock, Common Stock Equivalents, Subordinated Notes
or other securities of the Company (other than in connection with an employee
stock option or other benefit plan) under the Securities Act (other than: (i) a
registration on Form X-0, X-0 or any successor or similar forms; or (ii) a
similar registration under Canadian Securities Laws) and applicable Canadian
Securities Laws (or under the Securities Act or applicable Canadian Securities
Laws if the offering will not be registered under both the Securities Act and
applicable Canadian Securities Laws), whether or not for sale for its own
account (and including any registration pursuant to a request or demand
registration right of any other person), at any time, then the Company will each
such time, subject to the provisions of Section 3.2 hereof, give prompt written
notice to the Holders of its intention to do so and of the Holders' rights under
this Article III, at least 30 days prior to the anticipated filing date of the
registration statement relating to such registration; provided, in the case of a
registration pursuant to Article II, the Company need not provide such notice to
any Holder participating in such registration but will provide such notice to
the Management Holders. Such notice shall offer the Holders the opportunity to
include in such registration statement such number of Registrable Securities as
each Holder may request. Upon the written request of any Holder made within 15
days after the receipt of the Company's notice (which request shall specify the
number of Registrable Securities intended to be disposed of by such Holder), the
Company shall use its best efforts to effect the proposed registration under the
Securities Act and applicable Canadian Securities Laws of all Registrable
Securities which the Company has been so requested to register by such Holder to
the extent requisite to permit the disposition of the Registrable Securities so
to be registered; provided that (i) if such registration involves an
underwritten offering, any such Holder must sell its Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company (except that indemnification obligations of any such Holder
shall be limited to those obligations set forth in Article VI hereof) and (ii)
if, at any time after giving written notice of its intention to register any
securities pursuant to this Section 3.1 and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to each such Holder and, thereupon, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration. If a registration pursuant to this Section 3.1 involves an
underwritten public offering, any such Holder may elect, in writing no less than
one business day prior to the effective date of the registration statement filed
in connection with such registration, not to register such securities in
connection with such registration. No registration effected under this Article
III shall relieve the Company of its obligations to effect registrations upon
request under Article II hereof. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Article III.
3.2 Priority in Incidental Registrations. If a registration pursuant to
this Article III involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
(including IDSs and all Registrable Securities) which the Company, the Holders
and any other persons intend to include in such registration exceeds the largest
number of securities which can be sold without reasonably expecting to have an
adverse effect on such offering, including the price at which such securities
can be sold, the number of such securities to be included in such registration
shall be reduced to such extent, and the Company will include in such
registration such maximum number of securities as follows: first, all the
securities
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the Company proposes to sell for its own account pursuant to Section 3.1 in such
registration and second, to the extent that the number of securities which the
Company proposes to sell for its own account pursuant to Section 3.1 hereof is
less than the number of securities which the Company has been advised can be
sold in such offering without having the adverse effect referred to above, the
aggregate of the number of Registrable Securities requested to be included in
such registration by the Holders and the number of any other such securities
requested to be included in such registration by other holders shall be limited
to such extent, and shall be allocated pro rata among the Holders and all such
holders on the basis of the relative number of such securities then held by each
Holder and each such holder; provided that any such amount thereby allocated to
each Holder or any such other holder that exceeds such Holder's or such holder's
request, respectively, shall be reallocated among the Holders and the remaining
requesting holders in like manner, as applicable.
ARTICLE IV
HOLDBACK AGREEMENTS
4.1 Restrictions on Public Sale by the Company and Others. If any
registration of Registrable Securities shall be made in connection with an
underwritten public offering, the Company agrees (i) not to effect any public
sale or distribution of any IDSs, Common Stock, Common Stock Equivalents,
Subordinated Notes or other securities or of any security convertible into or
exchangeable or exercisable for any IDSs, Common Stock, Common Stock
Equivalents, Subordinated Notes or other securities of the Company (other than
in connection with an employee stock option or other benefit plan) during the 30
days prior to, and during the 180-day period beginning on, the closing date of
the sale of the Registrable Securities pursuant to an effective registration
statement (except as part of such registration) and (ii) that any agreement
entered into on or after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed IDSs, Common Stock,
Common Stock Equivalents, Subordinated Notes or other securities shall contain a
provision under which holders 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 and the equivalent provisions under Canadian Securities Laws,
including OSC Rule 45-501 (except as part of such registration, if permitted).
ARTICLE V
REGISTRATION PROCEDURES
5.1 Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act and applicable Canadian Securities Laws as
provided in this Agreement, the Company will, as expeditiously as possible:
(a) use its best efforts to prepare and file with the SEC and
applicable Canadian securities regulatory authorities within 30 days (or, for
registration on a Form S-3 or any similar short-form registration statement, 15
days), after receipt of a request for registration with respect to such
Registrable Securities, a registration statement or prospectus on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate, and which form
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shall be available for the sale of the Registrable Securities in accordance with
the intended methods of distribution thereof, and use its best efforts to cause
such registration statement to become and remain effective as promptly as
practicable, subject to the Majority Holders' right to defer the Company's
request for the acceleration of effectiveness of any such registration statement
as may be necessary to accommodate the anticipated timetable for such offering;
provided that before filing with the SEC and applicable Canadian securities
regulatory authorities a registration statement or prospectus or any amendments
or supplements thereto, the Company will (i) furnish to the selling Holders
copies of the form of prospectus (including the preliminary prospectus) proposed
to be filed and furnish to counsel for the selling Holders copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel and shall not be filed without the approval of such counsel (which
approval shall not be unreasonably withheld) and (ii) notify the selling Holders
of any stop order issued or threatened by the SEC and/or applicable Canadian
securities regulatory authorities and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(b) subject to Section 2.4 in the case of a Shelf Registration,
prepare and file with the SEC and applicable Canadian securities regulatory
authorities such amendments and supplements to such registration statement and
the prospectus (including each preliminary prospectus) used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 180 days or such shorter period which will terminate
when all Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the 90-day period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder and the equivalent provision
under Canadian Securities Laws), and comply with the provisions of the
Securities Act and the Canadian Securities Laws applicable to it with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) promptly furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus), in conformity
with the requirements of the Securities Act and Canadian Securities Laws, copies
of any correspondence with the SEC and/or the applicable Canadian securities
regulatory authorities or their staff relating to the registration statement and
such other documents as any Holder or underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities by such
Holder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any Holder or each underwriter, if any, reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder and each underwriter, if any, to consummate the
disposition in such jurisdictions of the Registrable Securities; provided that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction;
12
(e) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
Governmental Entities as may be necessary by virtue of the business and
operations of the Company to enable the selling Holders to consummate the
disposition of such Registrable Securities;
(f) immediately notify the selling Holders at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
and/or Canadian Securities Laws of the happening of any event which comes to the
Company's attention if as a result of such event the prospectus included in such
registration statement 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, in light of the circumstances under which they were
made, not misleading and the Company will promptly prepare and furnish to the
selling Holders a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(g) use its reasonable best efforts to prevent the issuance of and
obtain the withdrawal of any stop order suspending the effectiveness of a
registration statement relating to the Registrable Securities or of any order
preventing or suspending the use of any preliminary or final prospectus at the
earliest practicable moment;
(h) if requested by the managing underwriter or underwriters or any
Holder, immediately incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and each applicable
selling Holder agree and reasonably request should be included therein relating
to the plan of distribution with respect to such Registrable Securities,
including information with respect to the number of Registrable Securities being
sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(i) cooperate with the Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least three
business days prior to any sale of the Registrable Securities to the
underwriters;
(j) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange or quotation system on which the same
securities issued by the Company are then listed, and enter into such customary
agreements including a listing application and indemnification agreement in
customary form if the applicable listing requirements are satisfied, and to
provide a transfer agent and registrar for such Registrable Securities covered
by such registration statement no later than the effective date of such
registration statement;
13
(k) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Majority
Sellers or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities, including customary
indemnification and making appropriate members of senior management of the
Company available (subject to consulting with them in advance as to schedule)
for customary participation in "road show" presentations to potential investors;
(l) make available for inspection by the Holders, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any Holder or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, if any,
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees to supply all information and respond to all inquiries
reasonably requested by any such Inspector in connection with such registration
statement;
(m) use its best efforts to obtain (i) an opinion or opinions of
counsel to the Company and (ii) a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by opinions and "cold comfort" letters
(provided, that the term "customarily" as applied to any Registrable Securities
shall be deemed to include, without limitation, letters and opinions delivered
to the Company in connection with the initial public offering of IDSs) as the
selling Holders or the underwriter reasonably requests;
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and Canadian securities regulatory authorities,
and make available to its security holders, within the required time periods, an
earning statement covering the required periods, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder or any successor provisions thereto and the equivalent provisions
under Canadian Securities Laws;
(o) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of the registration statement) and the Canadian
Prospectus (including each preliminary prospectus), provide copies of such
document to counsel to the selling Holders and to the managing underwriters, if
any, make the Company's representatives available for discussion of such
document and make such changes in such document prior to the filing thereof as
counsel for the selling Holders may reasonably request;
(p) promptly notify the selling Holders, counsel for the selling
Holders, and the managing underwriter or agent and provide them with copies of
such relevant documents, (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment to the
prospectus shall have been filed, (ii) of the receipt of any comments from the
SEC or applicable Canadian securities regulatory authorities, (iii) of any
request of the SEC or applicable Canadian securities regulatory authorities to
amend the registration statement or amend or supplement the prospectus or for
14
additional information, and (iv) of the issuance by the SEC or applicable
Canadian securities regulatory authorities of any stop order suspending the
effectiveness of the registration statement or of any order preventing or
suspending the use of any prospectus, or of the suspension of the qualification
of the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes; and
(q) cooperate with the selling Holders and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with any
securities exchange and/or the NASD.
It shall be a condition precedent to the obligation of the Company
to take any action pursuant to this Agreement in respect of the securities which
are to be registered at the request of any Holder that such Holder shall furnish
to the Company such information regarding the securities held by such Holder and
the intended method of disposition thereof as the Company shall reasonably
request in connection with such registration.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in clause (f) of Section 5.1
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder receives the copies of the prospectus supplement or
amendment contemplated by clause (f) of Section 5.1 hereof, and, if so directed
by the Company, such Holder 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 Securities current at
the time of receipt of such notice. In the event the Company shall give any such
notice, the period mentioned in clause (b) of Section 5.1 hereof shall be
extended by the greater of (i) three months or (ii) the number of days during
the period from and including the date of the giving of such notice pursuant to
clause (f) of Section 5.1 hereof to and including the date when such Holder
shall have received the copies of the prospectus supplement or amendment
contemplated by clause (f) of Section 5.1 hereof.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by the Company. In the event of any registration of
any Registrable Securities under the Securities Act and applicable Canadian
Securities Laws pursuant to Article II or III hereof, the Company will, and it
hereby does, indemnify and hold harmless, to the full extent permitted by law,
each selling Holder, their directors and officers, employees, stockholders,
general partners, limited partners, members, advisory directors and managing
directors (and directors, officers, stockholders, general partners, limited
partners, members, advisory directors, managing directors and controlling
persons thereof), each other person who participates as an underwriter in the
offering or sale of such securities and each other person, if any, who controls,
is controlled by or is under common control with any such Holder or any such
underwriter within the meaning of the Securities Act and Canadian Securities
Laws, against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including any amounts paid in any settlement effected
with the Company's consent) to which such Holder, any such director, or officer,
employee, stockholder, general or limited partner, member, or advisory or
managing director or any such
15
underwriter or controlling person may become subject under the Securities Act
and Canadian Securities Laws, state securities or blue sky laws, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) or expenses arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
Registrable Securities were registered under the Securities Act and applicable
Canadian Securities Laws, any prospectus (including each preliminary prospectus)
contained therein, or any amendment or supplement thereto or (ii) 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 (in the case
of a prospectus (including each preliminary prospectus), in light of the
circumstances under which they are made), and the Company will reimburse each
such Holder and each such director, officer, employee, general partner, limited
partner, advisory director, managing director or underwriter and controlling
person for any legal or any other expenses reasonably incurred by them as such
expenses are incurred in connection with investigating or defending such loss,
claim, liability, action or proceeding; provided that 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 any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto or in any such prospectus (including each preliminary prospectus) in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Holder or such director,
officer, employee, general or limited partner, managing director or underwriter
specifically stating that it is for use in the preparation thereof; provided,
further, that the Company shall not be required to indemnify any such person if
such untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the final
prospectus or any amendment or supplement thereto and the final prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense suffered or
incurred by such indemnified person resulted from any action, claim or suit by
any person who purchased Registrable Securities which are the subject thereof
from such indemnified person and it is established in the related proceeding
that such indemnified person failed to deliver or provide a copy of the final
prospectus (as amended or supplemented) to such person with or prior to the
confirmation of the sale of such Registrable Securities sold to such person if
required by applicable law, unless such failure to deliver or provide a copy of
the final prospectus (as amended or supplemented) was a result of noncompliance
by the Company with this Agreement or as a result of the failure of the Company
to provide such final prospectus. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of each Holder or
any such director, officer, employee, general partner, limited partner, managing
director, underwriter or controlling person and shall survive the transfer of
such securities by any Holder.
6.2 Indemnification by Holders and Underwriters. The Company may
require, as a condition to including Registrable Securities in any registration
statement filed in accordance with Article II or III hereof, that the Company
will have received an undertaking reasonably satisfactory to it from any selling
Holder or any underwriter to indemnify and hold harmless (in the same manner and
to the same extent as set forth in Section 6.1) the Company and its directors,
officers, employees, controlling persons and all other prospective sellers and
their respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons,
16
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including any amounts paid in any settlement effected with the
consent of the applicable Holder and underwriter) to which the Company and its
directors, officers, employees, controlling persons or any other prospective
sellers and their respective directors, officers, general and limited partners,
managing directors, and their respective controlling persons may become subject
under the Securities Act and Canadian Securities Laws, state securities or blue
sky laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such Registrable Securities were registered under the
Securities Act or applicable Canadian Securities Laws, any prospectus (including
each preliminary prospectus) contained therein, or any amendment or supplement
thereto or (ii) 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 (in the case of a prospectus (including each preliminary
prospectus), in light of the circumstances under which they are made), and the
applicable Holder and underwriter will reimburse the Company and its directors,
officers, employees, controlling persons and all other prospective sellers and
their respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons for any legal or any other
expenses reasonably incurred by them as such expenses are incurred in connection
with investigating or defending such loss, claim, liability, action or
proceeding; provided that any Holder and any underwriter shall only be liable in
any such case if any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such prospectus (including each preliminary prospectus) in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Holder or any such underwriter specifically
stating that it is for use in the preparation thereof; provided, further, that
such Holder or underwriter shall not be required to indemnify the Company if
such untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the final
prospectus or any amendment or supplement thereto and the final prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and is covered by such Holder's or underwriter's obligation under
this Section 6.2 and any such loss, liability, claim, damage or expense suffered
or incurred by the Company resulted from any action, claim or suit by any person
who purchased Registrable Securities or other securities of the Company which
are the subject thereof from the Holder or the Company or another holder and it
is established in the related proceeding that a copy of the final prospectus (as
amended or supplemented) was delivered or provided to such person with or prior
to the confirmation of the sale of such Registrable Securities sold to such
Person if required by applicable law. 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, employee or controlling person or other
indemnified person. No Holder shall be liable under any indemnity provided
pursuant to this Article VI for any amounts exceeding the product of the
purchase price per Registrable Security and the number of Registrable Securities
being sold pursuant to such registration statement or prospectus by such Holder.
6.3 Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for
17
indemnification may be made pursuant to this Article VI, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, promptly 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 its obligations
under the preceding Sections of this Article VI, except to the extent that the
indemnifying party is actually materially prejudiced by such failure to give
notice. 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 will be entitled to participate in and, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgement a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such claim after the assumption of the defense thereof or a court of
competent jurisdiction determines that the indemnifying party is not vigorously
defending such action or proceeding. An indemnifying party will not be subject
to any liability for any settlement made without its consent (which consent
shall not be unreasonably withheld). No indemnifying party will consent to entry
of any judgment or enter into any settlement of any pending or threatened
proceeding which (i) does not include as an unconditional term thereof the
giving by the claimant or plaintiff to all indemnified parties of a release from
all liability in respect to such claim or litigation, (ii) involves the
imposition of equitable remedies or the imposition of any non-financial
obligations on such indemnified party or (iii) otherwise adversely affects such
indemnified party, other than as a result of the imposition of financial
obligations for which such indemnified party will be indemnified hereunder.
Notwithstanding anything to the contrary contained herein, an indemnifying party
will not be obligated to pay the fees and expenses of more than one counsel
(together with local counsel) for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels (together with the fees of local
counsel).
6.4 Contribution. If the indemnification provided for in this Article VI
is unavailable to an indemnified party under Section 6.1 or Section 6.2 hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, and
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party, on the one hand, and of the indemnified party, on the other
hand, shall be determined by reference to, among other things, 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
indemnifying party or by the
18
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 6.1 or Section 6.2, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 6.4, no Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Holder and distributed to
the public were offered to the public 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. 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.
6.5 Other Indemnification. Indemnification similar to that specified in
Section 6.1 and Section 6.2 (with appropriate modifications) shall be given by
the Company and each Holder with respect to any required registration or other
qualification of securities under any law or with any Governmental Entity other
than as required by the Securities Act or applicable Canadian Securities Laws.
6.6 Non-Exclusivity. The obligations of the parties under this Article
VI shall be in addition to any liability which any party may otherwise have to
any other party.
6.7 Indemnification Payments. The indemnification and contribution
required by Sections 6.1, 6.2 and 6.4 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 any expense, loss, damage or liability is incurred.
ARTICLE VII
MISCELLANEOUS
7.1 Remedies. The Company and each Holder acknowledge and agree that in
the event of any breach of this Agreement by any of them, the Holders and the
Company would be irreparably harmed and could not be made whole by monetary
damages. Each party accordingly agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate and that the
parties, 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 this Agreement.
7.2 Entire Agreement. This Agreement and the Amended and Amended and
Restated Stockholders Agreement, dated as of , 2003, among the Company,
VSI, Blackstone, Recreational Services and General Electric Capital Corporation
(the "Stockholders Agreement"),
19
constitute the entire agreements and understandings of the parties hereto in
respect of the subject matter contained herein, and there are no restrictions,
promises, representations, warranties, covenants, or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein and in the Stockholders Agreement. This Agreement and the Stockholders
Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
7.3 Notices. Any notice, request, instruction or other document to be
given hereunder by any party hereto to another party hereto shall be in writing,
shall be delivered personally or sent by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other delivery
service, to the address of the party set forth below or to such other address as
the party to whom notice is to be given may provide in a written notice to the
Company, a copy of which written notice shall be maintained on file with the
Secretary of the Company.
(a) If to Blackstone, to:
c/o The Blackstone Group
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Recreational Services, to:
c/o GE Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Phone:
Facsimile:
(c) If to VSI, to:
c/o Volume Services America
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(d) If to the Company, to:
Volume Services America Holdings, Inc.
20
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(e) If to Management, to:
Xxxxx Xxxxx or Xxxxxxx Xxxxx
c/o Volume Services America
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Xxxxxxxxxx
c/o Volume Services America Holdings, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice, request, instruction or document shall be deemed to have
been received on the date of delivery thereof.
7.4 Applicable Law. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
7.5 Jurisdiction. The courts of the State of New York in New York County
and the United States District Court for the Southern District of New York shall
have jurisdiction over the parties with respect to any dispute or controversy
between them arising under or in connection with this agreement and, by
execution and delivery of this agreement, each of the parties to this Agreement
submits to the exclusive jurisdiction of those courts, including but not limited
to the in personam and subject matter jurisdiction of those courts, waives any
objections to such jurisdiction on the grounds of venue or forum non conveniens,
the absence of in personam or subject matter jurisdiction and any similar
grounds, consents to service of process by mail (in accordance with Section 7.2)
or any other manner permitted by law, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement.
7.6 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
7.7 Severability. The invalidity, illegality or unenforceability of one
or more of the provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being
21
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
7.8 Other Agreements. Nothing contained in this Agreement shall be
deemed to be a waiver of, or release from, any obligations any party hereto may
have under, or any restrictions on the transfer of Registrable Securities or
other securities of the Company imposed by, any other agreement.
7.9 Successors; Assigns; Transferees. The provisions of this Agreement
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns. In
addition, and whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the Holders shall also
be for the benefit of and enforceable by any Transferee or subsequent holder of
Registrable Securities, subject to the provisions contained herein; provided
that the Company is given written notice at the time or within 90 days of said
transfer, stating the name and address of the Transferee and identifying the
securities with respect to which such registration rights are being transferred;
and provided, further, that the Transferee or assignee of such rights assumes in
writing the obligations of such Holder under this Agreement (in which case such
Holder shall be released from such obligations). Each Holder shall have the
exclusive option to determine which rights and obligations shall be assigned to
any Transferee.
7.10 Information to be Furnished by the Holders. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the registration and related
proceedings referred to herein.
7.11 Amendments, Waivers. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the provisions
hereof may be given unless consented to in writing by the Company and the
Majority Holders; provided, however, that any amendment, modification,
supplement or waiver of or to this Agreement that treats any Holder differently
than any other Holder shall require the consent of the Majority Holders of each
group of similarly treated Holders.
7.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
7.13 Limited Liability. Notwithstanding any other provision of this
Agreement neither the stockholders, members, general partners, limited partners,
advisory directors or managing directors, or any directors or officers of any
stockholders, members, general partners, limited partners, advisory directors or
managing directors, nor any future stockholders, members, general partners,
limited partners, advisory directors or managing directors, if any, of any
Holder shall have any personal liability for performance of any obligation of
such Holder under this Agreement.
7.14 Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the Registrable
Securities which would (i) adversely affect the ability of any Holder to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement or (ii) adversely affect the marketability of such Registrable
Securities in any such registration.
22
7.15 Rule 144. If the Company is subject to the requirements of Section
13, 14 or 15(d) of the Exchange Act, the Company covenants that it will file
with the SEC and Canadian securities regulatory authorities in a timely manner
any reports required to be filed by it under the Securities Act, the Exchange
Act and Canadian Securities Laws (or, if the Company is not required to file
such reports, it will, upon the request of any Holder, make publicly available
such information) and it will take such further action as any Holder may
reasonably request, so as to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, (ii) any similar rule or regulation hereafter
adopted by the SEC or (iii) an equivalent prospectus exemption under Canadian
Securities Laws, including OSC Rule 45-501. Upon the request of any Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
7.16 Other Registration Rights. (a) The Company covenants that it will
not grant any right of registration under the Securities Act or applicable
Canadian Securities Laws relating to any of its IDSs, shares of Common Stock,
Common Stock Equivalents, Subordinated Notes or other securities to any person
unless the Holders shall be entitled to have included in any registration
effected (i) pursuant to Article II hereof, all Registrable Securities requested
by it to be so included prior to the inclusion of any securities requested to be
registered by the persons entitled to any such other registration rights
pursuant to any provision providing incidental registration rights comparable to
those contained in Article III hereof and (ii) pursuant to Article III hereof,
pro rata with the inclusion of any securities requested to be registered by the
persons entitled to any such other registration rights pursuant to any provision
providing incidental registration rights comparable to those contained in
Article III hereof.
(b) If the Company at any time grants to any other holders of IDSs,
Common Stock, Common Stock Equivalents, Subordinated Notes or other securities
of the Company any rights to request the Company to effect the registration
(whether requested or incidental) under the Securities Act and applicable
Canadian Securities Laws of any such securities on any terms more favorable to
such holders than the terms set forth in this Agreement, the terms of this
Agreement shall, at the request of the Majority Holders, be deemed amended or
supplemented to the extent necessary to provide the Holders such more favorable
rights and benefits.
(c) The Company covenants that it will not enter into, or cause or
permit any of its subsidiaries to enter into, any agreement which conflicts with
or limits or prohibits the exercise of the rights granted to the Holders in this
Agreement.
(d) The Company covenants that it will not grant any right of
registration under the Securities Act or Canadian Securities Laws relating to
any of its IDSs, shares of Common Stock, Common Stock Equivalents, Subordinated
Notes or other securities to any Person pursuant to any provision providing
registration rights comparable to those contained in Article II hereof without
providing that the exercise of such rights will only be permitted following the
consummation of an underwritten public offering by the Majority Holders.
7.17 Limitation on Separate Registration of Common Stock. Notwithstanding
anything in this Agreement to the contrary, nothing herein shall require the
Company to separately register the Common Stock (not in the form of IDSs) at any
time that the Common Stock is not then
23
actively traded on the American Stock Exchange, Toronto Stock Exchange or any
other national securities exchange or automated securities quotation system.
7.18 Headings. The headings and captions contained herein are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof.
7.19 Currency. All references herein to "$" or "dollars" refer to United
States currency. Any determination herein as to price shall be made in (or
converted into) U.S. dollars.
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This Agreement has been duly executed and delivered by the individuals whose
names appear below and by the duly authorized representatives of each party
hereto as of the date first above written.
VOLUME SERVICES AMERICA HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
------------------------------------
Name: Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
BCP VOLUME L.P.
By: Blackstone Capital Partners II
Merchant Banking Fund L.P.
By: Blackstone Management
Associates II L.L.C., as
General Partner
By:
-----------------------
Name:
Title:
BCP OFFSHORE VOLUME L.P.
By: Blackstone Offshore Capital
Partners II L.P.
By: Blackstone Management
Associates II L.L.C., as
General Partner
25
By:
-----------------------
Name:
Title:
By: Blackstone Service (Cayman)
LDC, as Administrative
General Partner
By:
-----------------------
Name:
Title:
VSI MANAGEMENT DIRECT, L.P.
By: VSI Management I L.L.C.
By:
-----------------------
Name:
Title:
By: Blackstone Management
Associates II L.L.C., as
Managing Member
By:
-----------------------
Name:
Title:
RECREATIONAL SERVICES L.L.C.
By: General Electric Capital
Corporation, as Managing Member
By:
----------------------------
Name:
Title:
