Exhibit 4.18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of the 5th day
of December, 1997, by and between Boston Chicken, Inc., a Delaware corporation
(the "Company"), and Sanwa Business Credit Corporation, a Delaware corporation
("Sanwa").
ARTICLE I
CERTAIN DEFINITIONS
1.1 "Business Day" means any day on which the Nasdaq National Market is
open for trading.
1.2 "Closing Date" means December, 1997.
1.3 "Common Stock" means the common stock, $.01 par value per share, of
the Company.
1.4 "Eligible Securities" means all or any portion of the shares of Common
Stock issuable upon the exercise of that warrant certificate issued to Sanwa of
even date herewith (the "Warrant"), and all other securities issued with respect
thereto by reason of dividends, stock splits, combinations or similar
transactions. Securities shall cease to be Eligible Securities for all purposes
of this Agreement when (i) a registration statement with respect to the sale 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 are permitted to be sold pursuant to Rule 144(k)
(or any successor provision to such Rule) under the Securities Act, (iii) such
securities shall have been otherwise transferred pursuant to an applicable
exemption under the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered by the
Company and such securities shall be freely transferable to the public without
registration under the Securities Act, or (iv) a written opinion of counsel of
the Company addressed to the Stockholder owning such securities to the effect
that such securities may be sold without registration under the Securities Act
has been delivered to such Stockholder.
1.5 "Person" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.6 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with the SEC a registration
statement in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement.
1.7 "Registration Expenses" shall mean all expenses, other than Selling
Expenses (as defined below), incurred by the Company in complying with this
Agreement, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel,
accountants and other experts employed by the Company, blue sky fees and
expenses and the expense of any special audits incident to or required by any
such registration.
1.8 "Resale Registration" shall have the meaning set forth in Article 2
hereof.
1.9 "SEC" means the Securities and Exchange Commission.
1.10 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.11 "Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered on
behalf of the Stockholders and all fees and disbursements of counsel for the
Stockholders.
1.12 "Selling Stockholder" means any Stockholder selling Eligible
Securities registered pursuant to Article 2 hereof.
1.13 "Stockholder" means Sanwa and any person holding Eligible Securities
to whom the rights under this Agreement have been transferred in accordance with
Section 5.9 hereof.
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ARTICLE 2
RESALE REGISTRATION
2.1 Resale Registration. The Company hereby agrees to file under the
Securities Act, within the 18-month period immediately following the Closing
Date (such period, subject to extension as provided below, the "Resale
Registration Period"), a registration statement on Form S-1 or any similar long-
form registration statement or Form S-3 or any similar short-form registration
statement, at its election, to register all Eligible Securities, whether in
connection with a primary registration of its Common Stock or otherwise ("Resale
Registration"). The Company shall have the right to select the timing of the
Resale Registration within the Resale Registration Period. The Company shall
have the right to include in any such Resale Registration any other securities
of the Company, including, but not limited to, any securities of the Company
(the "Earlier Securities") desired to be registered by persons or entities also
having registration rights from the Company. The Resale Registration Period
shall be extended for a period of 6 additional months if the Company shall have
been advised in writing by a nationally recognized independent investment
banking firm that, in such firm's opinion, the filing of a registration
statement for the Resale Registration immediately prior to the end of the
original Resale Registration Period might materially and adversely affect the
Company (including the price of the Company's Common Stock).
2.2 Restrictions on Resale Registration. The Company may postpone for up
to three months the filing or effectiveness of a registration statement for a
Resale Registration if the Company believes that such Resale Registration would
reasonably be expected to have an adverse effect on any proposal or plan by the
Company or any of its subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer or similar transaction; provided, however, that immediately following such
postponement, the Company shall file or request effectiveness of the Resale
Registration notwithstanding the expiration of the Resale Registration Period.
2.3 Registration Expenses. The Company (as between the Company and the
Selling Stockholders) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 2. The
Selling Stockholders (as between the Selling Stockholders and the Company) shall
be responsible for all Selling Expenses relating to Eligible Securities
registered on behalf of the Selling Stockholders.
2.4 [Intentionally Omitted.]
2.5 Black-Out Period. The Company may, by notice given to all Selling
Stockholders under the Resale Registration, require such Selling Stockholders
not to make any sale of Eligible Securities pursuant to the registration
statement for the Resale Registration if (i) in the opinion of the Company, (x)
securities laws applicable to such sale would require the Company to disclose
material non-public information ("Non-Public Information") and (y) the
disclosure of such Non-Public Information would adversely affect the Company or
(ii) such sale would occur during the measurement period (a "Measurement
Period") for determining the amount of Common Stock, or the amount of any other
consideration the amount of which will be based on the price of the
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Common Stock, in connection with the acquisition of a business or assets by the
Company. In the event the sales under the Resale Registration are deferred
because of the existence of Non-Public Information, the Company will notify the
Selling Stockholders promptly upon such Non-Public Information being included by
the Company in a filing with the SEC, being otherwise disclosed to the public
(other than through the actions of a Selling Stockholder) or ceasing to be
material to the Company, and upon such notice being given by the Company, the
Selling Stockholders shall again be entitled to sell Eligible Securities
pursuant to the Resale Registration. In the event such sales are deferred
because it is proposed to be made during a Measurement Period, the Company shall
specify, in notifying the Selling Stockholders of the deferral of its sale, when
the Measurement Period will end, at which time the Selling Stockholders shall
again be entitled to sell Eligible Securities pursuant to the Resale
Registration. If the Measurement Period is thereafter changed, the Company will
promptly notify the Selling Stockholders of such change and upon the end of the
Measurement Period as so changed, the Selling Stockholders will again be
entitled to sell Eligible Securities pursuant to the Resale Registration. If
the acquisition agreement to which such Measurement Period relates is terminated
prior to the end of the Measurement Period, the deferral period hereunder shall
end immediately and the Company will notify the Selling Stockholders of the end
of the deferral period.
ARTICLE 3
REGISTRATION PROCEDURES
3.1 Registration and Qualification.
(a) The Company shall prepare and file with the SEC such amendments
and supplements to any registration statement registering Eligible Securities
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective, and comply with the provisions of the
Securities Act with respect to the disposition of all Eligible Securities, until
the earlier of such time as all of such Eligible Securities have been disposed
of in accordance with the intended methods of disposition by the Selling
Stockholders as set forth in the registration statement or the expiration of
three years after the date such registration statement has become effective;
provided, however, that in the event that the Company shall notify the Selling
Stockholders of the happening of any event which would cause the prospectus
included as part of such registration statement, as then in effect, to include
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, such
Selling Stockholders shall thereafter sell no shares under such registration
statement until the Company has filed an amendment or supplement to the
prospectus to cause the prospectus not to include an untrue statement of a
material fact or omit to state any material facts 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, subject to Section 2.5 hereof, the
Company shall be obligated to promptly amend or supplement the prospectus so
that the prospectus does not include 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;
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(b) The Company will use its reasonable best efforts to register or
qualify such Eligible Securities under the blue sky laws of such jurisdictions
as any Selling Stockholder reasonably requests and to do any and all other acts
which may be reasonably necessary to enable such Selling Stockholder to
consummate the disposition in such jurisdictions of the Eligible Securities
owned by such Selling Stockholder (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 subparagraph, (ii)
subject itself to taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction);
(c) The Company may require the Selling Stockholders to furnish to the
Company such information regarding the Selling Stockholders and the distribution
of the Eligible Securities as the Company may from time to time reasonably
request in writing and as shall be required by law or by the SEC in connection
with any registration;
(d) The Company shall provide to each Selling Stockholder such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the disposition of the Eligible
Securities registered pursuant to such registration statement; and
(e) The Company will provide a transfer agent and registrar for all
Eligible Securities not later than the effective date of the registration
statement, and use its reasonable best efforts to cause the Eligible Securities
to be listed on each securities exchange or national market system on which the
Common Stock is then listed.
3.2 Underwriting. In the event that any registration pursuant to Article
2 hereof shall involve, in whole or in part, an underwritten offering, the
Company may require Eligible Securities to be included in such underwriting on
the same terms and conditions as shall be applicable to the Common Stock being
sold through underwriters under such registration. In such case, the holders of
Eligible Securities on whose behalf Eligible Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement. Such
agreement shall contain such representations and warranties by the Selling
Stockholders and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article 4. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Selling Stockholders.
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ARTICLE 4
INDEMNIFICATION
4.1 Indemnification.
(a) In the event of any registration of any Eligible Securities
hereunder, the Company hereby agrees to indemnify and hold harmless each
Stockholder and, to the extent applicable, its directors and officers, its
partners, its trustees and each Person who controls any of such Persons against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) 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 final prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, 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, and
the Company will promptly reimburse each such Person for any legal or any other
expenses reasonably incurred by such Person in connection with investigating or
defending any such loss, claim, damage, 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 an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any final prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholders expressly for use in the registration
statement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of a Selling Stockholder or any such
Person and shall survive the transfer of such securities by the Selling
Stockholders.
(b) The Selling Stockholders agree severally and not jointly to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in clause (a) of this Article 4) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement,
and each Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement in or omission from such
registration statement, any final prospectus included therein, or any amendment
or supplement thereto, but only to the extent that such statement or omission
was made in reliance upon and in conformity with written information furnished
by such Selling Stockholders to the Company expressly for use in the
registration statement; provided that the obligation to indemnify will be
limited to the net amount of proceeds received by such holder from the sale of
Eligible Securities. 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 or controlling Person and shall survive the transfer of the
registered securities by the Selling Stockholders and the expiration of this
Agreement.
(c) Indemnification similar to that specified in the preceding
subdivisions of this Article 4 (with appropriate modifications) shall be given
by the Company and the Selling
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Stockholders with respect to any required registration or other qualification of
such Eligible Securities under any federal or state law or regulation of
governmental authority other than the Securities Act.
ARTICLE 5
MISCELLANEOUS
5.1 Captions. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
5.2 Severability. If any clause, provision or section of this Agreement
shall be invalid or unenforceable, the invalidity or unenforceability of such
clause, provision or section shall not affect the enforceability or validity of
any of the remaining clauses, provisions or sections hereof to the extent
permitted by applicable law.
5.3 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Delaware, without reference to
its rules as to conflicts or choice of laws.
5.4 Modification and Amendment. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by the
Stockholders owning at least 50% of the Eligible Securities.
5.5 [Intentionally Omitted.]
5.6 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
5.7 Entire Agreement. This Agreement constitutes the entire agreement and
understanding among the parties and supersedes any prior understandings and/or
written or oral agreements among them respecting the subject matter herein.
5.8 Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery
service, facsimile transmission or by certified mail, return receipt requested,
postage prepaid. Notices shall be deemed given when actually received, which
shall be deemed to be not later than the next Business Day if sent by overnight
courier or facsimile transmission or after five (5) Business Days if sent by
mail. Notice to Stockholders shall be made to the address listed on the stock
transfer records of the Company. Notice to the Company shall be made to the
Company's principal executive offices at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxx,
Xxxxxxxx 00000, Attn: General Counsel, or such other address for which the
Company has given written notice to the Stockholder.
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5.9 Transfer of Registration Rights. The obligation of the Company to
register Eligible Securities granted to Sanwa hereunder may be assigned to one
or more transferees or assignees of Sanwa in connection with any transfer or
assignment in a private transaction of Eligible Securities; provided, however,
such assignee(s) of Sanwa may not further assign such rights without the prior
written consent of the Company. Any transfer of registration rights pursuant to
this Section shall be effective upon receipt by the Company of written notice
from Sanwa or such other Stockholder transferring Eligible Securities (i)
stating the name and address of the transferee, (ii) the number of Eligible
Securities transferred and (iii) the date of transfer, which notice shall be
accompanied by an agreement of the transferee stating that all of the terms and
provisions of this Agreement will be binding upon and enforceable against such
transferee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
BOSTON CHICKEN, INC.
By: /s/ Xxxx X. Xxxx
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Title: Senior Vice President
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SANWA BUSINESS CREDIT CORPORATION
By: Signature Illegible
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Title: Vice President
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