Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of August 18,
1995, among Crimson Acquisition Corp., an Alabama corporation,
Crimson Associates, L.P., a Delaware limited partnership
("Crimson Associates"), and KKR Partners II, L.P., a Delaware
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limited partnership ("KKR Partners II" and, together with Crimson
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Associates, the "Common Stock Partnerships").
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RECITALS
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Pursuant to an Agreement and Plan of Merger, dated as
of April 20, 1995, as amended as of May 18, 1995 (as amended, the
"Merger Agreement"), among Bruno's, Inc. ("Bruno's") and the
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Company (as defined below), the Company will be merged with and
into Bruno's on August 18, 1995 (the "Merger"). As a result of
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the Merger, each outstanding share of common stock, par value
$.01 per share (the "Common Stock") of the Company, all 1,000 of
which shares are owned collectively by the Common Stock
Partnerships, will be converted into (i) a number of shares of
common stock, par value $.01 per share, of Bruno's equal to the
quotient of (A) 20,833,333 divided by (B) the number of shares of
Common Stock outstanding immediately prior to the Effective Time
of the Merger, and (ii) a number of warrants equal to the
quotient of (A) 10,000,000 divided by (B) the number of shares of
Common Stock outstanding immediately prior to the Effective Time
of the Merger (the "Warrants"). At the Effective Time of the
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Merger, Bruno's shall succeed by merger to all of the rights and
obligations of the Company, including those set forth herein, as
well as to all of the other property and assets of the Company.
Pursuant to a Stock Sale and Equity Contribution
Agreement, dated as of August 18, 1995 (the "Equity Contribution
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Agreement"), among the Company and the Common Stock Partnerships,
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the Common Stock Partnerships made equity contributions of $250
million in the aggregate to the Company. Upon the merger of the
Company with and into Bruno's, such $250 million will be received
by Bruno's as an equity contribution by the Common Stock
Partnerships.
AGREEMENT
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1. Definitions. As used in this Agreement, the
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following capitalized terms shall have the following respective
meanings:
"Common Stock": the common stock, par value $.01 per
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share, of Crimson Acquisition Corp. and its successors,
including, without limitation, the common stock of Bruno's
into which the Common Stock may be converted by Merger.
"Common or Common Equivalent Registrable Securities":
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Registrable Securities which are (i) Common Stock or (ii)
securities that are convertible into or exchangeable or
exercisable for Common Stock (other than the Warrants).
"Company": Crimson Acquisition Corp. and its
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successors, including, without limitation, Bruno's, Inc. as
successor by Merger.
"Demand Party": (a) Crimson Associates, (b) KKR
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Partners II or (c) any other Holder or Holders, including,
without limitation, any present or future general or limited
partner of either Common Stock Partnership, or any general
or limited partner of any general or limited partner
thereof, that may become an assignee of such Common Stock
Partnership's rights hereunder; provided that to be a Demand
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Party under this clause (c), a Holder or Holders must either
individually or in aggregate with all other Holders with
whom it is acting together to demand registration own at
least 1% of the total number of Registrable Securities.
"Exchange Act": The Securities Exchange Act of 1934,
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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.
"Holder": Each Common Stock Partnership and any other
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holder of Registrable Securities (including any direct or
indirect transferees of a Common Stock Partnership) who
agrees in writing to be bound by the provisions of this
Agreement.
"Person": Any individual, partnership, joint venture,
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corporation, trust, unincorporated organization or
government or any department or agency thereof.
"Registrable Securities": Any Common Stock acquired by
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a Common Stock Partnership from the Company or any affiliate
of the Company, whether as a result of the Merger or upon
the conversion of any convertible security (other than the
Warrants) or otherwise, and any Common Stock or convertible
security which may be issued or distributed in respect
thereof by way of stock dividend or stock split or other
distribution, recapitalization or reclassification. 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 Holder of such securities shall have become
effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration
statement, (ii) such securities shall have been distributed
to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) such securities
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shall have been otherwise transferred, new certificates for
such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require
registration or qualification of such securities under the
Securities Act or any state securities or blue sky law then
in force, or (iv) such securities shall have ceased to be
outstanding.
"Registration Expenses": Any and all expenses incident
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to performance of or compliance with this Agreement,
including, without limitation, (i) all SEC and stock
exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees (including, if
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applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in
Schedule E to the By-laws of the NASD, and of its counsel),
(ii) all fees and expenses of complying with securities or
blue sky laws (including fees and disbursements of counsel
for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and
expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange pursuant
to clause (viii) of Section 4 and all rating agency fees,
(v) 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,
(vi) the reasonable fees and disbursements of counsel
selected pursuant to Section 7 hereof by the Holders of the
Registrable Securities being registered to represent such
Holders in connection with each such registration, (vii) any
fees and disbursements of underwriters customarily paid by
the issuers or sellers of securities, including liability
insurance if the Company so desires or if the underwriters
so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested
registration, but excluding underwriting discounts and
commissions and transfer taxes, if any, and (viii) other
reasonable out-of-pocket expenses of Holders (provided that
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such expenses shall not include expenses of counsel other
than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as
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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.
"SEC": The Securities and Exchange Commission or any
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other federal agency at the time administering the
Securities Act or the Exchange Act.
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2. Incidental Registrations. (a) Right to Include
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Common or Common Equivalent Registrable Securities. If the
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Company at any time after the date hereof proposes to register
its Common Stock (or any security which is convertible into or
exchangeable or exercisable for Common Stock) under the
Securities Act (other than a registration on Form S-4 or S-8, or
any successor or other forms promulgated for similar purposes),
whether or not for sale for its own account, in a manner which
would permit registration of Common or Common Equivalent
Registrable Securities for sale to the public under the
Securities Act, it will, at each such time, give prompt written
notice to all Holders of Common or Common Equivalent Registrable
Securities of its intention to do so and of such Holders' rights
under this Section 2. Upon the written request of any such
Holder made within 15 days after the receipt of any such notice
(which request shall specify the Common or Common Equivalent
Registrable Securities intended to be disposed of by such
Holder), the Company will use its best efforts to effect the
registration under the Securities Act of all Common or Common
Equivalent Registrable Securities which the Company has been so
requested to register by the Holders thereof, to the extent
requisite to permit the disposition of the Common or Common
Equivalent Registrable Securities so to be registered; provided
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that (i) 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 not to
proceed with the proposed registration of the securities to be
sold by it, the Company may, at its election, give written notice
of such determination to each Holder of Common or Common
Equivalent Registrable Securities and, thereupon, shall be
relieved of its obligation to register any Common or Common
Equivalent Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration
involves an underwritten offering, all Holders of Common or
Common Equivalent Registrable Securities requesting to be
included in the Company's registration must sell their Common or
Common Equivalent Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply
to the Company, with such differences, including any with respect
to indemnification and liability insurance, as may be customary
or appropriate in combined primary and secondary offerings. If a
registration requested pursuant to this Section 2(a) involves an
underwritten public offering, any Holder of Common or Common
Equivalent Registrable Securities requesting to be included in
such registration may elect, in writing 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. Nothing in this Section 2(a) shall operate to
limit the right of Holder to (i) request the registration of
Common Stock issuable upon conversion or exercise of convertible
securities held by such Holder notwithstanding the fact that at
the time of request such Holder holds only convertible securities
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or (ii) request the registration at one time of both Common Stock
and securities convertible into Common Stock.
(b) Expenses. The Company will pay all Registration
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Expenses in connection with each registration of Common or Common
Equivalent Registrable Securities requested pursuant to this
Section 2.
(c) Priority in Incidental Registrations. If a
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registration pursuant to this Section 2 involves an underwritten
offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested
to be included in such registration exceeds the number which can
be sold in such offering, so as to be likely to have an adverse
effect on the price, timing or distribution of the Securities
offered in such offering as contemplated by the Company (other
than the Common or Common Equivalent Registrable Securities),
then the Company will include in such registration (i) first,
100% of the securities the Company proposes to sell and (ii)
second, to the extent of the number of Common or Common
Equivalent Registrable Securities requested to be included in
such registration which, in the opinion of such managing
underwriter, can be sold without having the adverse effect
referred to above, the number of Common or Common Equivalent
Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro
rata among all requesting Holders on the basis of the relative
number of shares of Common or Common Equivalent Registrable
Securities then held by each such Holder (provided that any
shares thereby allocated to any such Holder that exceed such
Holder's request will be reallocated among the remaining
requesting Holders in like manner).
3. Registration on Request. (a) Request by the
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Demand Party. At any time, upon the written request of the
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Demand Party requesting that the Company effect the registration
under the Securities Act of all or part of such Demand Party's
Registrable Securities and specifying the amount and intended
method of disposition thereof, the Company will promptly give
written notice of such requested registration to all other
Holders of such Registrable Securities, and thereupon will, as
expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i) such Registrable Securities (including, if such
request relates to a security which is convertible into
shares of Common Stock, the shares of Common Stock issuable
upon such conversion) which the Company has been so
requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class
or series as are to be registered at the request of a Demand
Party and which the Company has been requested to register
by any other Holder thereof by written request given to the
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Company within 15 days after the giving of such written
notice by the Company (which request shall specify the
amount and intended method of disposition of such
Registrable Securities),
all to the extent necessary to permit the disposition (in
accordance with the intended method thereof as aforesaid) of the
Registrable Securities so to be registered; provided, that with
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respect to any Demand Party other than a Common Stock
Partnership, the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 3(a)
unless such Demand Party requests that the Company register at
least 1% of the total number of Registrable Securities; and
provided, further, that, unless Holders of a majority of the
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shares of Registrable Securities held by Holders consent thereto
in writing, the Company shall not be obligated to file a
registration statement relating to any registration request under
this Section 3(a) (x) within a period of nine months after the
effective date of any other registration statement relating to
any registration request under this Section 3(a) which was not
effected on Form S-3 (or any successor or similar short-form
registration statement) or relating to any registration effected
under Section 2, or (y) if with respect thereto the managing
underwriter, the SEC, the Securities Act or the rules and
regulations thereunder, or the form on which the registration
statement is to be filed, would require the conduct of an audit
other than the regular audit conducted by the Company at the end
of its fiscal year, in which case the filing may be delayed until
the completion of such regular audit (unless the Holders of the
Registrable Securities to be registered agree to pay the expenses
of the Company in connection with such an audit other than the
regular audit). Nothing in this Section 3 shall operate to limit
the right of Holder to (i) request the registration of Common
Stock issuable upon conversion or exercise of convertible
securities held by such Holder notwithstanding the fact that at
the time of request such Holder holds only convertible securities
or (ii) request the registration at one time of both Common Stock
and securities convertible into Common Stock.
(b) Registration Statement Form. If any registration
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requested pursuant to this Section 3 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) 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.
(c) Expenses. The Company will pay all Registration
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Expenses in connection with the first six (6) registrations of
each class or series of Registrable Securities pursuant to this
Section 3 upon the written request of any of the Holders,
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provided that, for purposes hereof, a request to register Common
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Stock into which a convertible security is convertible in
conjunction with a registration of such convertible security
shall be deemed to be one request for registration of a class or
series of Registrable Securities. All expenses for any
subsequent registrations of Registrable Securities pursuant to
this Section 3 shall be paid pro rata by the Company and all
other Persons (including the Holders) participating in such
registration on the basis of the relative number of shares of
Common Stock of each such person whose Registrable Securities are
included in such registration.
(d) Effective Registration Statement. A registration
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requested pursuant to this Section 3 will not be deemed to have
been effected unless it has become effective and all of the
Registrable Securities registered thereunder have been sold;
provided that if, within 180 days after it has become effective,
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the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental
agency or court, such registration will be deemed not to have
been effected.
(e) Selection of Underwriters. If a requested
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registration pursuant to this Section 3 involves an underwritten
offering, the Holders of a majority of the shares of Registrable
Securities which are held by Holders and which the Company has
been requested to register shall have the right to select the
investment banker or bankers and managers to administer the
offering; provided, however, that such investment banker or
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bankers and managers shall be reasonably satisfactory to the
Company.
(f) Priority in Requested Registrations. If a
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requested registration pursuant to this Section 3 involves an
underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities
requested to be included in such registration (including
securities of the Company which are not Registrable Securities)
exceeds the number which can be sold in such offering, the
Company will include in such registration only the Registrable
Securities requested to be included in such registration. In the
event that the number of Registrable Securities requested to be
included in such registration exceeds the number which, in the
opinion of such managing underwriter, can be sold, the number of
such Registrable Securities to be included in such registration
shall be allocated pro rata among all requesting Holders on the
basis of the relative number of shares of Registrable Securities
then held by each such Holder (provided that any shares thereby
allocated to any such Holder that exceed such Holder's request
shall be reallocated among the remaining requesting Holders in
like manner). In the event that the number of Registrable
Securities requested to be included in such registration is less
than the number which, in the opinion of the managing
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underwriter, can be sold, the Company may include in such
registration the securities the Company proposes to sell up to
the number of securities that, in the opinion of the underwriter,
can be sold.
(g) Additional Rights. If the Company at any time
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grants to any other holders of Common Stock any rights to request
the Company to effect the registration under the Securities Act
of any such shares of Common Stock on terms more favorable to
such holders than the terms set forth in this Section 3, the
terms of this Section 3 shall be deemed amended or supplemented
to the extent necessary to provide the Holders such more
favorable rights and benefits.
4. Registration Procedures. If and whenever the
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Company is required to use its best efforts to effect or cause
the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will,
as expeditiously as possible:
(i) prepare and, in any event within 120 days after
the end of the period within which a request for
registration may be given to the Company, file with the SEC
a registration statement with respect to such Registrable
Securities and use its best efforts to cause such
registration statement to become effective, provided,
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however, that the Company may discontinue any registration
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of its securities which is being effected pursuant to
Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective for a period
not in excess of 270 days and to comply with the provisions
of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder 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 seller or sellers thereof set
forth in such registration statement; provided that before
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filing a registration statement or prospectus, or any
amendments or supplements thereto, the Company will furnish
to counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities covered by such
registration statement to represent such Holders, copies of
all documents proposed to be filed, which documents will be
subject to the review of such counsel;
(iii) furnish to each seller of such Registrable
Securities such number of copies of such registration
statement and of each amendment and supplement thereto (in
each case including all exhibits filed therewith, including
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any documents incorporated by reference), such number of
copies of the prospectus included in such registration
statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration in such
jurisdictions as each seller shall reasonably request, and
do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable
Securities 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 where, but for the requirements of this clause
(iv), it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause such Registrable
Securities 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 Securities;
(vi) notify each seller of any such Registrable
Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act within the appropriate
period mentioned in clause (ii) of this Section 4, 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 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, and at the request of any
such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as
may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, 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;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable (but not more than eighteen months) after the
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effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(viii) (A) if such Registrable Securities are Common
Stock (including Common Stock issuable upon conversion of a
convertible security), use its best efforts to list such
Registrable Securities on any securities exchange on which
the Common Stock is then listed if such Registrable
Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (B) if such
Registrable Securities are convertible securities, upon the
reasonable request of sellers of a majority of shares of
such Registrable Securities, use its best efforts to list
the convertible securities and, if requested, the Common
Stock underlying the convertible securities, notwithstanding
that at the time of request such sellers hold only
convertible securities, on any securities exchange so
requested, if such Registrable Securities are not already so
listed, and if such listing is then permitted under the
rules of such exchange; (C) and use its best efforts to
provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later
than the effective date of such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form), which may include
indemnification provisions in favor of underwriters and
other persons in addition to, or in substitution for the
provisions of Section 5 hereof, and take such other actions
as sellers of a majority of shares of such Registrable
Securities or the underwriters, if any, reasonably requested
in order to expedite or facilitate the disposition of such
Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the
Company's independent public accounts in customary form and
covering matters of the type customarily covered by "cold
comfort" letters as the seller or sellers of a majority of
shares of such Registrable Securities shall reasonably
request (provided that Registrable Securities constitute at
least 25% of the securities covered by such registration
statement);
(xi) make available for inspection by any seller of
such Registrable Securities covered by such registration
statement, by any underwriter participating in any
disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply
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all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection
with such registration statement;
(xii) notify counsel (selected pursuant to Section 7
hereof) for the Holders of Registrable Securities included
in such registration statement and the managing underwriter
or agent, immediately, and confirm the notice in writing (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 prospectus shall have been filed, (ii) of the
receipt of any comments from the SEC, (iii) of any request
of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information, and
(iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary
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;
(xiii) make every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of
the registration statement or of any order preventing or
suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the withdrawal of any such
order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent
or any Holder of Registrable Securities covered by the
registration statement, promptly incorporate in a prospectus
supplement or post-effective amendment such information as
the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, without
limitation, with respect to the number of Registrable
Securities being sold by such Holder to such underwriter or
agent, the purchase price being paid therefor by such
underwriter or agent and with respect to any other terms of
the 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 practicable after being notified of the matters
incorporated in such prospectus supplement or post-effective
amendment;
(xv) cooperate with the Holders of Registrable
Securities covered by the registration statement and the
managing underwriter or agent, if any, to facilitate the
timely preparation and delivery of certificates (not bearing
any restrictive legends) representing securities to be sold
under the registration statement, and enable such securities
to be in such denominations and registered in such names as
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the managing underwriter or agent, if any, or such Holders
may request;
(xvi) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent
an opinion or opinions from counsel for the Company in
customary form and in form, substance and scope reasonably
satisfactory to such Holders, underwriters or agents and
their counsel; and
(xvii) cooperate with each seller of Registrable
Securities 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 the NASD.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish the Company with such information regarding such seller
and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in clause (vi) of this Section 4,
such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause
(vi) of this Section 4, 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 (ii) of this Section 4 shall be extended by
the number of days during the period from and including the date
of the giving of such notice pursuant to clause (vi) of this
Section 4 and including the date when each seller of Registrable
Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus
contemplated by clause (vi) of this Section 4.
5. Indemnification. (a) Indemnification by the
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Company. In the event of any registration of any securities of
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the Company under the Securities Act pursuant to Section 2 or 3,
the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the seller of any
Registrable Securities covered by such registration statement,
each affiliate of such seller and their respective directors and
officers or general and limited partners (including any director,
officer, affiliate, employee, agent and controlling Person of any
of the foregoing), each other Person who participates as an
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underwriter in the offering or sale of such securities and each
other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all
-------------------
losses, claims, damages or liabilities, joint or several, and
expenses (including reasonable attorney's fees and reasonable
expenses of investigation) to which such Indemnified Party may
become subject under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof, whether or not such -
Indemnified Party is a party thereto) arise out of or are based
upon (a) 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, final or summary prospectus contained therein, or
any amendment or supplement thereto, or (b) any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in
the case of a prospectus, in light of the circumstances under
which they were made) not misleading, and the Company will
reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with
investigating or defending against any such loss, claim,
liability, action or proceeding; provided that the Company shall
--------
not be liable to any Indemnified Party 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 preliminary,
final or summary prospectus 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 thereof. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of such seller or any Indemnified Party and
shall survive the transfer of such securities by such seller.
(b) Indemnification by the Seller. The Company may
-----------------------------
require, as a condition to including any Registrable Securities
in any registration statement filed in accordance with Section 4
herein, that the Company shall have received an undertaking
reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth
in subdivision (a) of this Section 5) the Company and all other
prospective sellers with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement, if
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an
instrument duly executed by such seller or underwriter
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specifically stating that it is for use in the preparation of
such registration statement, preliminary, final or summary
prospectus or amendment or supplement, or a document incorporated
by reference into any of the foregoing. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors,
officers or controlling Persons and shall survive the transfer of
such securities by such seller. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) 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 indemnification may be made pursuant to this Section 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 the Indemnified Party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 5,
except to the extent that the indemnifying party is actually
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 Party and indemnifying parties may exist
in respect of such claim, the indemnifying party will 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 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 other than reasonable costs of investigation. No
indemnifying party will consent to entry of any judgment or enter
into any settlement 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 in respect to
such claim or litigation.
(d) Contribution. If the indemnification provided for
-------------
in this Section 5 from the indemnifying party is unavailable to
an Indemnified Party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then the
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 fault of the indemnifying party and
-14-
Indemnified Parties in connection with the actions which resulted
in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative
fault of such indemnifying party and Indemnified Parties shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or Indemnified
Parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The amount paid or payable by a party under this Section 5(d) as
a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) 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. 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.
(e) Other Indemnification. Indemnification similar to
---------------------
that specified in the preceding subdivisions of this Section 5
(with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under
any federal or state law or regulation or governmental authority
other than the Securities Act.
(f) Non-Exclusivity. The obligations of the parties
---------------
under this Section 5 shall be in addition to any liability which
any party may otherwise have to any other party.
6. Rule 144. The Company covenants that it will file
--------
the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the
SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available such information), and it
will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell shares of
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, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a
-15-
written statement as to whether it has complied with such
requirements. Notwithstanding anything contained in this Section
6, the Company may deregister under Section 12 of the Exchange
Act if it then is permitted to do so pursuant to the Exchange Act
and the rules and regulations thereunder.
7. Selection of Counsel. In connection with any
--------------------
registration of Registrable securities pursuant to Sections 2 and
3 hereof, the Holders of a majority of the Registrable Securities
covered by any such registration may select one counsel to
represent all Holders of Registrable Securities covered by such
registration; provided, however, that in the event that the
-------- -------
counsel selected as provided above is also acting as counsel to
the Company in connection with such registration, the remaining
Holders shall be entitled to select one additional counsel to
represent all such remaining Holders.
8. Miscellaneous. (a) Other Investors. The Company
------------- ---------------
may enter into agreements with other purchasers of Common Stock
who are then employees of the Company (or its successor) or any
of its subsidiaries, making them parties hereto (and thereby
giving them all, or a portion, of the rights, preferences and
privileges of an original party hereto) with respect to
additional shares of Common Stock (the "Supplemental
------------
Agreements"); provided, however, that pursuant to any such
----------
Supplemental Agreement, such purchaser expressly agrees to be
bound by all of the terms, conditions and obligations of this
Agreement as if such purchaser were an original party hereto.
All shares of Common Stock issued or issuable pursuant to such
Supplemental Agreements shall be deemed to be Registrable
Securities.
(b) Holdback Agreement. If any such registration
------------------
shall be in connection with an underwritten public offering, each
Holder of Registrable Securities agrees not to effect any public
sale or distribution, including any sale pursuant to Rule 144
under the Securities Act, of any equity securities of the
Company, or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (in each case,
other than as part of such underwritten public offering), within
7 days before or such period not to exceed 180 days as the
underwriting agreement may require (or such lesser period as the
managing underwriters may permit) after the effective date of
such registration (except as part of such registration), and the
Company hereby also so agrees and agrees to cause each other
holder of any equity security, or of any security convertible
into or exchangeable or exercisable for any equity security, of
the Company purchased from the Company (at any time other than in
a public offering) to so agree.
(c) Amendments and Waivers. This Agreement may be
----------------------
amended and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to
-16-
such amendment, action or omission to act, of the Holders of a
majority of the Registrable Securities then outstanding;
provided, however, that no amendment, waiver or consent to the
-------- -------
departure from the terms and provisions of this Agreement that is
adverse to either Common Stock Partnership or any of their
respective successors and assigns shall be effective as against
any such Person for so long as such Person holds any Registrable
Securities unless consented to in writing by such Person. Each
Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this
Section 8(c), whether or not such Registrable Securities shall
have been marked to indicate such consent.
(d) Successors, Assigns and Transferees. This
-----------------------------------
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and 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 parties hereto other than the Company shall also
be for the benefit of and enforceable by any subsequent Holder of
any Registrable Securities, subject to the provisions contained
herein. Without limitation to the foregoing, in the event that
either Common Stock Partnership distributes or otherwise
transfers any shares of the Registrable Securities to any of its
present or future general or limited partners, the Company hereby
acknowledges that the registration rights granted pursuant to
this Agreement shall be transferred to such partner or partners
on a pro rata basis, and that at or after the time of any such
distribution or transfer, any such partner or group of partners
may designate a Person to act on its behalf in delivering any
notices or making any requests hereunder.
(e) Notices. All notices and other communications
-------
provided for hereunder shall be in writing and shall be sent by
first class mail, telex, telecopier or hand delivery:
(i) (A) if to the Company prior to the Merger, to:
Crimson Acquisition Corp.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx/Xxxxx X. Xxxxxx, Xx.
(B) if to the Company following the Merger, to:
Bruno's, Inc.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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(ii) if to either Common Stock Partnership, to:
c/o KKR Associates
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx/Xxxxx X. Xxxxxx, Xx.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq
(iii) if to any other holder of Registrable Securities,
to the address of such other holder as shown in the stock
record book of the Company, or to such other address as any
of the above shall have designated in writing to all of the
other above.
All such notices and communications shall be deemed to
have been given or made (1) when delivered by hand, (2) five
business days after being deposited in the mail, postage prepaid,
(3) when telexed answer-back received or (4) when telecopied,
receipt acknowledged.
(f) Descriptive Headings. The headings in this
--------------------
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of terms contained herein.
(g) Severability. In the event that any one or more
-------------
of the provisions, paragraphs, words, clauses, phrases or
sentences contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not
be in any way impaired, it being intended that all rights, powers
and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
(h) Counterparts. This Agreement may be executed in
------------
counterparts, and by different parties on separate counterparts,
each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same
instrument.
(i) Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to
contracts made and to be performed therein. The parties to this
Agreement hereby agree to submit to the jurisdiction of the
courts of the State of New York, the courts of the United States
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of America for the Southern District of New York, and appellate
courts from any thereof in any action or proceeding arising out
of or relating to this Agreement.
(j) Specific Performance. The parties hereto
--------------------
acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that they shall be
entitled to an injunction or injunctions to prevent breaches of
the provision of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law
or in equity.
-19-
IN WITNESS WHEREOF, each of the undersigned has
executed this Agreement or caused this Agreement to be duly
executed on its behalf as of the date first written above.
CRIMSON ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Title: Chief Executive Officer
CRIMSON ASSOCIATES, L.P.
By: KKR ASSOCIATES,
its General Partner
By:/s/ Xxxx X. Xxxxxxx
----------------------
General Partner
KKR PARTNERS II, L.P.
By: KKR ASSOCIATES,
its General Partner
By:/s/ Xxxx X. Xxxxxxx
----------------------
General Partner
-20-
ACKNOWLEDGEMENT
The undersigned authorized officer of Bruno's, Inc. is aware of
this Registration Rights Agreement and acknowledges that Bruno's,
Inc. will be bound by the terms hereof as successor to Crimson
Acquisition Corp. by merger.
BRUNO'S, INC.
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
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