Exhibit 4.3
TEXAS ROADHOUSE, INC.
REGISTRATION RIGHTS AGREEMENT
MAY 7, 2004
TABLE OF CONTENTS
SECTION 1 DEFINITIONS........................................................1
SECTION 2 REGISTRATION RIGHTS................................................2
2.1 Requested Registration.............................................2
2.2 Company Registration...............................................4
2.3 Registration on Form S-3...........................................6
2.4 Limitations on Subsequent Registration Rights......................6
2.5 Expenses of Registration...........................................7
2.6 Registration Procedures............................................7
2.7 Indemnification....................................................9
2.8 Information by Holder.............................................11
2.9 Rule 144 Reporting................................................11
2.10 Transfer of Registration Rights...................................11
2.11 Termination.......................................................12
2.12 Lock-up Agreement.................................................12
SECTION 3 MISCELLANEOUS.....................................................12
3.1 Governing Law.....................................................12
3.2 Entire Agreement; Amendment.......................................12
3.3 Notices, etc......................................................13
3.4 Severability......................................................13
3.5 Counterparts......................................................13
TEXAS ROADHOUSE, INC.
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the "AGREEMENT") is made as of May 7,
2004, by and among
Texas Roadhouse, Inc., a Delaware corporation (the
"COMPANY"), and the Eligible Equity Owners (as defined below).
RECITALS
A. The Company is a party to that certain Master Transaction Agreement
dated as of May 7, 2004 (the "MASTER TRANSACTION AGREEMENT"), by and among the
Company, W. Xxxx Xxxxxx, Texas Roadhouse of Texas, LLC and the Combined Entities
(as defined in the Master Transaction Agreement).
B. It is a condition to the obligations of the Combined Entities under
the Master Transaction Agreement that the Company enter into this Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "COMMISSION" shall mean the Securities and Exchange Commission or
any other U. S. federal agency at the time administering the Securities Act.
1.2 "COMMON STOCK" shall mean shares of the Company's Class A Common
Stock, par value $0.001 per share.
1.3 "ELIGIBLE EQUITY OWNERS" shall mean those Equity Owners (as defined
in the Master Transaction Agreement) who have executed a counterpart of this
Agreement.
1.4 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
1.5 "HOLDER OR HOLDERS" shall mean each of the Eligible Equity Owners
(and their transferees as permitted by Section 2.10) holding Registrable
Securities.
1.6 "INITIATING HOLDERS" shall mean Holders who in the aggregate hold
greater than fifty percent (50%) of the Registrable Securities. "OTHER HOLDERS"
shall mean holders of Company securities, other than the Holders, proposing to
distribute their securities pursuant to a registration under Section 2 of this
Agreement.
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1.7 "INITIAL PUBLIC OFFERING" shall have the meaning set forth in the
Master Transaction Agreement.
1.8 "REGISTRABLE SECURITIES" shall mean (i) shares of Common Stock
issued pursuant to the Master Agreement to the Eligible Equity Owners; (ii)
shares of Common Stock issued upon the conversion of any shares of Class B
Common Stock, par value $0.001 per share, of the Company; (iii) any Common Stock
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such Common Stock, excluding in all
cases, however, any Registrable Securities that have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction or which have been sold in a private transaction in which the
transferor's rights under this Agreement are not assigned.
1.9 The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement. "REGISTRATION EXPENSES" shall mean
all expenses, except as otherwise stated below, incurred by the Company in
complying with Sections 2.1, 2.2 and 2.3 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company (and fees and disbursements of
one special counsel for Holders, if any), accounting fees, blue sky fees and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
1.10 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar United States federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
1.11 "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders.
SECTION 2
REGISTRATION RIGHTS
2.1 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than 500,000
Registrable Securities (as equitably adjusted for any stock splits, stock
dividends, combinations or recapitalizations occurring after the date hereof
(each a "RECAPITALIZATION")) the Company will:
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(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within ten (10) days after receipt of such written notice from
the Company or such later date as agreed to by the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to
take any action to effect any such registration, qualification or compliance
pursuant to this Section 2.1:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) Prior to the 180th day following the effective date
of the Initial Public Offering;
(C) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
six (6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company sold by the Company (other
than a registration of securities in a Rule 145 transaction or with respect to
an employee benefit plan), provided that the Company is actively employing in
good faith all reasonable efforts to cause such registration statement to become
effective;
(D) After the Company has effected two (2)
registrations pursuant to this Section 2.1, and such registrations have been
declared or ordered effective, provided that all Registrable Securities
requested to be included in each such registration(s) were in fact included in
the registration; or
(E) If the Company shall furnish to such Holders a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed in the near future, then the Company's obligation to use its best
efforts to register, qualify or comply under this Section 2 shall be deferred
for a period not to exceed ninety (90) days from the date of receipt of written
request from the Initiating Holders, provided, however, that the Company shall
not utilize this right more than once in any twelve (12) month period.
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Subject to the foregoing clauses (A) through (E), the
Company shall file a registration statement covering the Registrable Securities
so requested to be registered as soon as practicable, after receipt of the
request or requests of the Initiating Holders.
(b) UNDERWRITING. In the event that a registration pursuant to
Section 2.1 is for a registered public offering involving an underwriting, the
Initiating Holders will so advise the Company as part of the written request
given by such Initiating Holders pursuant to Section 2.1(a), and the Company
shall in turn advise the Holders as part of the notice given pursuant to Section
2.1(a)(i). In such event, the right of any Holder to registration pursuant to
Section 2.1 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 2.1, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting and the Other Holders, if any) enter
into an underwriting agreement in customary form with the managing
underwriter(s) selected for such underwriting by the majority in interest of the
Initiating Holders, but subject to the reasonable approval of the Company.
Notwithstanding any other provision of this Section 2.1, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders and Other Holders, and the number of shares
that may be included in the registration and underwriting shall be allocated
first among all Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at the time of
filing the registration statement and second among the Other Holders in
proportion to the number of shares proposed to be included in such registration
by such Other Holders. No shares proposed to be included in such registration by
any of the Other Holders shall be included in such registration unless all
shares requested to be included by the Initiating Holders are included in such
registration. No Registrable Securities or other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the underwriters may round
the number of shares allocated to any holder to the nearest one hundred (100)
shares.
If any Holder of Registrable Securities or Other Holder disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the Initiating
Holders. The Registrable Securities and/or other securities so withdrawn shall
also be withdrawn from registration.
2.2 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to
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employee benefit plans or (ii) a registration relating solely to a Commission
Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) if requested by Initiating Holders, include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests made, within ten (10) days
after receipt of such written notice from the Company or such later date as
agreed to by the Company, by any Holder.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.2(a). In such event the right of any Holder to
registration pursuant to Section 2.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall, together with the
Company and the Other Holders, if any, enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 2.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of shares of Registrable Securities to be included in such registration
without requiring any limitation in the number of shares to be registered on
behalf of the Company, provided that if such underwriting is other than the
Initial Public Offering, the number of shares of Registrable Securities to be
included in such registration shall not be limited to less than twenty-five
percent (25%) of the total number of shares to be included in such registration.
The Company shall so advise all Holders and Other Holders and the number of
shares that may be included in the registration and underwriting by all Holders
and Other Holders shall be allocated among them, as nearly as practicable,
first, to the Company, second, among the Holders of Registrable Securities in
proportion to the respective amounts of Registrable Securities held by such
Holders at the time of filing of the registration statement, and, third, among
the Other Holders in proportion to the number of shares proposed to be included
in such registration by such Other Holders. No shares proposed to be included in
such registration by any of the Other Holders shall be included in such
registration unless all shares requested to be included by the Holders are
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the Company may round the number of shares
allocated to any Holder or Other Holder to the nearest one hundred (100) shares.
If any Holder or Other Holder disapproves of the terms of any such underwriting,
such holder may elect to withdraw therefrom by written notice to the Company and
the managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.2 prior to the
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effectiveness of such registration whether or not any Holder has elected to
include Registrable Securities in such registration.
2.3 REGISTRATION ON FORM S-3.
(a) REQUEST FOR REGISTRATION. If Initiating Holders request that
the Company file a registration statement on Form S-3 under the Securities Act
(or any successor form to Form S-3) for a public offering of shares of the
Registrable Securities the reasonably anticipated aggregate price to the public
of which would exceed $1,000,000 (before deducting the underwriters' discounts
and commissions), and the Company is a registrant entitled to use Form S-3 to
register the Registrable Securities for such an offering, the Company shall use
its best efforts to cause such Registrable Securities to be registered for the
offering on such form and to cause such Registrable Securities to be qualified
in such jurisdictions as the Holder or Holders may reasonably request. The
substantive provisions of Section 2.1(b) shall be applicable to each
registration initiated under this Section 2.3.
(b) LIMITATIONS. Notwithstanding the foregoing, the Company shall
not be obligated to take any action pursuant to this Section 2.3: (i) in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act; (ii)
during the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; (iii) if the Company shall furnish
to such Holder a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Company for registration statements to be
filed in the near future, then the Company's obligation to use its best efforts
to file a registration statement shall be deferred for a period not to exceed
ninety (90) days from the receipt of the request to file such registration by
such Holder, provided, however, that the Company shall not utilize this right
more than once in any twelve (12) month period; or (iv) for any particular
Holder, after the Company has effected two (2) registrations pursuant to this
Section 2.3, and such registrations have been declared or ordered effective.
2.4 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date hereof, the Company will not, without the prior written consent of holders
of a majority of the voting power of the then outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which grants such holder or prospective holder of
(a) to include such securities in any registration filed under Section 2.1 or
2.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his securities will not reduce the
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amount of the Registrable Securities of the Holders which is included or (b) to
make a demand registration which could result in such registration statement
being declared effective within one hundred twenty (120) days of the effective
date of any registration effected pursuant to Section 2.2.
2.5 EXPENSES OF REGISTRATION.
(a) REGISTRATION EXPENSES. The Company shall bear all Registration
Expenses incurred in connection with all registrations pursuant to Section 2.1
and Section 2.2. The Holders of the Registrable Securities shall bear all
Registration Expenses in connection with all registrations pursuant to Section
2.3.
(b) SELLING EXPENSES. Unless otherwise stated in Section 2.5(a),
all Selling Expenses and Registration Expenses relating to securities registered
on behalf of the Holders shall be borne by the Holders pro rata on the basis of
the number of shares so registered.
2.6 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will:
(a) keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof;
(b) as soon as practicable, prepare and file with the Commission a
registration statement with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective until the
earlier of (i) one hundred twenty (120) days or (ii) the distribution described
in the Registration Statement has been completed; provided, however, that (i)
such 120-day period shall be extended for a period of time equal to the period
the Holder refrains from selling any securities included in such registration at
the request of the managing underwriter; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 120-day period shall be extended,
if necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 415, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis,
and, provided further, that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement;
(c) furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents
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as such underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(e) in the event of an underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement;
(f) use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(g) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed;
(h) use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 2, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 2, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities;
(i) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements made therein not misleading in the light of the circumstances then
existing; and
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(j) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
2.7 INDEMNIFICATION.
(a) BY COMPANY. The Company will indemnify each Holder and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities,
joint or several, (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act, the Exchange Act or any state or federal securities law, or any
rule or regulation promulgated under such Acts or law applicable to the Company
in connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
regarding a Holder furnished to the Company by an instrument duly executed by
such Holder, underwriter or controlling person and stated to be specifically for
use therein. If the Holders are represented by counsel other than counsel for
the Company, the Company will not be obligated under this Section 2.7(a) to
reimburse legal fees and expenses of more than one separate counsel for all
Holders.
(b) BY HOLDERS. Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors, each of its officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will
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reimburse the Company, such Holders, such directors, officers, persons,
underwriters or controlling persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information regarding a Holder furnished to the Company
by an instrument duly executed by such Holder and stated to be specifically for
use therein. Notwithstanding the foregoing, the liability of each Holder under
this subsection (b) shall be limited in an amount equal to the public offering
price of the shares sold by such Holder, unless such liability arises out of or
is based on willful misconduct by such Holder.
(c) PROCEDURES. Each party entitled to indemnification under this
Section 2.7 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, 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 2.7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect 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 that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations, provided that in no event shall any contribution by a Holder
under this Section 2.7(d) exceed the public offering price of shares sold by
such Holder, except in the case of willful misconduct by such Holder. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the
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Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) CONTROLLING AGREEMENT. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions of this Section 2.7, the
provisions in the underwriting agreement shall control.
2.8 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by them as the Company may request in writing
and only as shall be necessary to enable the Company to comply with the
provisions hereof in connection with any registration, qualification or
compliance referred to in this Agreement.
2.9 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended and for so long as the Company remains subject to the periodic reporting
requirements under Section 13 or 15(d) of the Exchange Act.
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements).
(c) Furnish to any Holder forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company and other information in as such Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
such Holder to sell any such securities without registration.
2.10 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Holders under Sections 2.1, 2.2 and 2.3 may be
transferred in connection with any transfer by a Holder of Registrable
Securities provided that: (i) such transfer may otherwise be effected in
accordance with applicable securities laws, (ii) such
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transfer is effected in compliance with the restrictions on transfer contained
in this Agreement and in any other agreement between the Company and the Holder,
and (iii) such transferee is an affiliate of a Stockholder or acquires (I) at
least 50,000 shares of Registrable Securities (as equitably adjusted for
Recapitalizations) or (II) all shares of Registrable Securities held by a
Stockholder if transferred to a single transferee. No transfer will divest a
Holder or any subsequent owner of such rights and powers unless all Registrable
Securities are transferred or assigned.
2.11 TERMINATION. The rights granted pursuant to this Section 2 shall
terminate as to any Holder at the later of (i) five years after the Initial
Public Offering, or (ii) at such time as such Holder may sell under Rule 144, or
a successor rule, in a three month period all Registrable Securities then held
by such Holder.
2.12 LOCK-UP AGREEMENT. If, in connection with the public offering of the
Company's securities, the Company or the underwriters managing the offering so
request, each Holder shall not sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for (i) 180
days from the effective date of such registration in the case of the Company's
initial public offering and (ii) 90 days from the effective date of such
registration in the case of any other public offering of the Company's
securities.
SECTION 3
MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the Commonwealth of
Kentucky as applied to contracts made and to be
fully performed entirely within that state between residents of that state. All
disputes arising out of this Agreement shall be subject to the exclusive
jurisdiction and venue of the
Kentucky state courts of Jefferson County,
Kentucky, (or, if there is exclusive federal jurisdiction, the United States
District Court for the Western District of
Kentucky) and the parties consent to
the personal and exclusive jurisdiction and venue of these courts.
3.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and thereof. This Agreement or any term hereof may be
amended, waived, discharged or terminated by a written instrument signed by the
Company and the Holders holding a majority of the Registrable Securities then
outstanding; provided, however, that if any amendment or waiver shall affect any
Holder materially differently and adversely than other Holders, then such
amendment or waiver shall require the consent of the Holder(s) so materially
differently and adversely affected. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each party to the
Agreement, whether or not such party has signed such amendment or waiver, each
future Holder, and the Company.
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3.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be deemed given if in writing and mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed (a) if to an Eligible Equity Owner, at such address as such
Eligible Equity Owner shall have furnished to the Company in writing, or (b) if
to any other Holder, at such address as such Holder shall have furnished the
Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last Holder of such Registrable
Securities who has so furnished an address to the Company, or (c) if to the
Company, at the address of its principal offices and addressed to the attention
of the Corporate Secretary and with a copy to Xxxxx Xxxxx Xxxx LLC, 000 Xxxx
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxxx
X. Xxxxxxx, Esq. or at such other address as the Company shall have furnished to
the Holders.
3.4 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
3.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
"COMPANY"
TEXAS ROADHOUSE, INC., a
Delaware corporation
By:/S/ X. X. XXXX
-------------------------------------
X. X. Xxxx, Chief Executive Officer
/S/ W. XXXX XXXXXX
----------------------------------------
W. Xxxx Xxxxxx
OTHER ELIGIBLE EQUITY OWNERS
/S/ W. XXXX XXXXXX
----------------------------------------
W. Xxxx Xxxxxx, Power of Attorney
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