Exhibit 4.19
REGISTRATION RIGHTS AGREEMENT
This registration rights agreement (the "Agreement") is entered into
as of this 12th day of December, 1996, between Boston Chicken, Inc., a Delaware
corporation ("BCI"), and General Electric Capital Corporation, a New York
corporation ("GECC").
SECTION 1. DEMAND REGISTRATION.
(a) Registrable Securities. "Registrable Securities" shall mean those
restricted shares of BCI common stock, $.01 par value, acquired by GECC pursuant
to that (i) warrant certificate issued to GECC of even date herewith (the
"Warrant"), (ii) any warrants derived from such Warrant or, (iii) any warrant in
the Warrant Series (as defined in the Warrant).
(b) Request for Registration. At any time after June 30, 1997, the
holders of at least 51% of the Registrable Securities may request registration
under the Securities Act of 1933, as amended (the "Securities Act"), of all or
part of their Registrable Securities on Form S-2 or S-3 or any similar short-
form registration then available to BCI (the "Demand Registration"). The request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered. Within ten days after receipt of any such
request, BCI shall give written notice of such requested registration to all
other holders of Registrable Securities and shall include in such registration
all Registrable Securities with respect to which BCI has received written
requests for inclusion therein within 15 days after the date of BCI's notice.
(c) Registration. The holders of Registrable Securities shall be
entitled to request one Demand Registration. A registration shall not count as
the permitted Demand Registration until it has become effective (unless such
Demand Registration has not become effective due solely to the fault of the
holders proposed to be included in such registration); provided that a Demand
Registration shall not count as the permitted Demand Registration unless (i) the
holders of Registrable Securities are able to register at least 90% of the
Registrable Securities requested to be included in such registration and (ii)
BCI shall have maintained the effectiveness of such registration for a period of
at least 90 days (or such shorter period as may be required until the sale of
the Registrable Securities so registered); provided, further, that, in any event
BCI shall pay all Registration Expenses as set forth in Section 5 hereof in
connection with any registration initiated as a Demand Registration whether or
not it has become effective, and whether or not such registration has counted as
the permitted Demand Registration (unless such Demand Registration does not
become effective due solely to the fault of the holders proposed to be included
in such registration).
(d) Other Securities. BCI shall include in the Demand Registration all
BCI securities ("Earlier Securities") desired to be registered by persons or
entities having superior registration rights pursuant to (i) that certain Second
Amended and Restated Piggyback Registration Rights Agreement dated November 8,
1993 (the "1993 Agreement"), in accordance with the terms and conditions of the
1993 Agreement, and (ii) that certain
Registration Rights Agreement dated September 27, 1996 (the "1996 Agreement,"
and together with the 1993 Agreement, the "Superior Agreements"), in accordance
with the terms and conditions of the 1996 Agreement.
(e) Restrictions on Registration. Notwithstanding anything herein to
the contrary, BCI shall not be obligated to effect the Demand Registration
within 180 days after the effective date of a previous registration statement in
which the holders of Registrable Securities were given piggyback rights pursuant
to paragraph 2 and in which there was no reduction in the number of Registrable
Securities requested to be included. BCI may postpone for up to 180 days the
filing or the effectiveness of a registration statement for the Demand
Registration if BCI determines in its reasonable good faith judgment that the
Demand Registration would reasonably be expected to have an adverse effect on
BCI or its subsidiaries or on any proposal or plan by BCI 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, reorganization
or similar transaction; provided that in such event, the holders of Registrable
Securities initially requesting such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as the permitted Demand Registration hereunder and
BCI shall pay all Registration Expenses in connection with such abandoned
registration.
SECTION 2. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Commencing on the date on which the holders of
Registrable Securities are first entitled to request the Demand Registration
pursuant to paragraph 1(b) above, whenever BCI proposes to register any of
shares of its Common Stock (other than shares of Common Stock underlying any
option, warrant, or convertible debt or other security) under the Securities Act
(other than pursuant to the Demand Registration) in either an underwritten
public offering or in connection with registration of Common Stock for resale on
the public markets and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), BCI shall
give prompt written notice (in any event within five business days after its
receipt of notice of any exercise of demand registration rights other than under
this Agreement) to the holders of Registrable Securities of its intention to
effect such a registration and, subject to the provisions hereof, shall include
in such registration all Registrable Securities with respect to which BCI has
received written requests for inclusion therein within 15 days after the date of
its notice. Notwithstanding anything herein to the contrary, BCI shall not be
required to effect any registration of Registrable Securities under this
paragraph 2: (i) incidental to the registration of any of its securities in
connection with mergers, acquisitions, exchange offers, subscription offers,
dividend reinvestment plans or stock option or other employee benefit plans, or
incidental to the filing of a registration statement for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
or any similar rule that may be adopted by the SEC, or (ii) if the Piggyback
Registration is a primary registration on behalf of BCI (whether or not
underwritten) and BCI determines in its reasonable judgment that including any
Registrable Securities in such registration will adversely effect such primary
registration or BCI's objectives in connection therewith.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by BCI in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of BCI, and the managing
underwriters advise BCI in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to BCI, BCI will include in such registration (i) first, the
securities BCI proposes to sell, (ii) second, other securities requested to be
included in such registration pursuant to registration rights under the Superior
Agreements, (iii) third, the Registrable Securities requested to be included in
such registration, pro rata among the holders of Registrable Securities
requesting registration on the basis of the Registrable Securities owned by each
such holder, and (iv) fourth, other securities requested to be included in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of BCI's
securities, and the managing underwriters advise BCI in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the holders initially requesting such
registration, BCI shall include in such registration (i) first, the securities
requested to be included therein by the holders requesting such registration,
(ii) second, other securities requested to be included in such registration
pursuant to registration rights under the Superior Agreements, (iii) third, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of Registrable Securities requesting registration on the basis
of the Registrable Securities owned by each such holder, and (iv) fourth, other
securities requested to be included in such registration.
SECTION 3. HOLDBACK AGREEMENT.
No holder of Registrable Securities shall effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of BCI,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period (or such
shorter period as the underwriters managing the registered public offering may
permit) beginning on the effective date of an underwritten Demand Registration
or any underwritten Piggyback Registration in which Registrable Securities are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
SECTION 4. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities have properly
requested that any Registrable Securities be registered pursuant to this
Agreement, BCI shall, subject to the provisions hereof, use its reasonable best
efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto BCI shall as expeditiously as
reasonably practicable:
(i) prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement and include therein the
Registrable Securities and such Earlier Securities as comply with the
procedures of the Superior Agreements, prepare and file all
amendments, post-effective amendments and supplements to such
registration statement as may be necessary under the Act and the
regulations thereunder to permit the sale of such Earlier Securities
and Registrable Securities to the public, and use its reasonable best
efforts to cause such registration statement to become effective and
remain effective for a period of not less than one year or until such
earlier time as all of the securities covered by such registration
statement have been sold (provided that before filing such
registration statement, BCI will furnish to counsel selected by the
holders of Registrable Securities, if any, copies of the registration
statement for review by such counsel);
(ii) use its reasonable best efforts to (a) register or qualify
such Earlier Securities and Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any of the
sellers of such Earlier Securities and Registrable Securities
(collectively, the "Sellers" and individually, a "Seller") reasonably
request, and (b) do any and all other acts and things which may be
reasonably necessary to allow Sellers to consummate the disposition in
such jurisdictions of such Earlier Securities and Registrable
Securities owned by such Sellers; provided, however, that BCI will not
be required to (w) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph (ii), (x) subject itself to taxation in any such
jurisdiction, (y) consent to general service of process in any such
jurisdiction, or (z) incur costs or fees which are inordinate to the
value of the securities sought to be sold in such jurisdiction;
(iii) use its reasonable efforts to cause all such Earlier
Securities and Registrable Securities to be included for quotation on
the Nasdaq National Market;
(iv) furnish to each Seller 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 each Seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Seller;
(v) notify each Seller, 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 contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not
misleading, and, at the request of such Seller, prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state
any fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and
(vi) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of the
registration statement.
(b) BCI hereby represents and warrants that it is eligible to file a
registration statement on Form S-3 pursuant to the rules and regulations
pertaining thereto under the Securities Act.
(c) Upon the request of BCI, each Seller will promptly furnish to BCI
in writing, during the period within which BCI is required to effect such
registration, all information and affidavits as may be reasonably requested by
BCI in connection with items required to be included in the registration
statement, or any amendment or supplement thereto. To the extent BCI reasonably
requests such information and affidavits and such Seller does not provide such
information or affidavits in a timely manner, then, BCI's obligation to register
such Seller's Registrable Securities hereunder shall be null and void.
SECTION 5. REGISTRATION EXPENSES.
The Sellers will bear all underwriting discounts and commissions, if
any, and the fees and disbursements of their legal counsel, accountants, and
personnel and agents in connection with the sale of Registrable Securities under
this Agreement. BCI will bear all other reasonable expenses in connection with
any registration or qualification of the Registrable Securities pursuant to this
Agreement.
SECTION 6. INDEMNIFICATION.
(a) BCI agrees to indemnify, to the extent permitted by law, each
Seller, and each person, if any, who controls such Seller within the meaning of
the Act, against any and all losses, claims, damages or liabilities to which
such Seller may become subject under the Act or any other statute or common law
by reason of its offer and sale of Registrable Securities pursuant to the
registration statement, and to reimburse such Seller for any reasonable legal or
other expenses actually and reasonably incurred in connection
with investigating any claims and defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of, or are based upon:
(i) any untrue statement of a material fact or any alleged untrue
statement of a material fact contained in or incorporated by reference
in the registration statement or any post-effective amendment thereto,
or the 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 under which they were made, not
misleading; or
(ii) any untrue statement of a material fact or any alleged
untrue statement of a material fact contained or incorporated by
reference in the prospectus (as amended or supplemented if BCI shall
have filed with the Commission any amendment or supplement thereto),
if used within the period during which BCI is required to keep the
registration statement in which such prospectus is contained current
pursuant to the terms of this Agreement, or the omission or alleged
omission to state therein a material fact necessary in order to make
the statements contained therein, in light of the circumstances under
which they were made, not misleading;
provided, however, that the indemnification agreement contained herein shall not
apply to losses, claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or any such omission or alleged omission,
if such statement or omission was made in reliance upon, and in conformity with,
information furnished to BCI by or on behalf of the Sellers for use in
connection with the preparation of the registration statement or any prospectus
contained in the registration statement or any such amendment or supplement
thereto.
(b) The Sellers shall (in the same manner and to the same extent as
set forth in Section 6(a)), severally indemnify, to the extent permitted by law,
BCI, each person, if any, who controls BCI within the meaning of the Act, and
their directors and officers, if such statement or omission was made in reliance
upon and in conformity with information furnished to BCI by or on behalf of any
Seller for use in connection with the preparation of the registration statement
or any amendment or supplement thereto; provided, however, that each Seller's
obligations hereunder shall be limited to an amount equal to the proceeds to
such Seller of the Registrable Securities sold pursuant to such Registration
Statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided, however, that any failure by a person
entitled to indemnification hereunder to give such prompt written notice shall
not adversely affect such person's rights hereunder unless such failure
prejudices the rights of the indemnifying party hereunder) and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable
judgment of such counsel a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
SECTION 7. REGISTRATION RIGHTS OF OTHER SECURITY HOLDERS. The
registration rights granted pursuant to this Agreement are granted subject to
any and all registration rights granted by BCI to holders of its securities
prior to the date hereof, and no provision herein shall be interpreted so as to
be superior to, inconsistent with, or adversely effect, any such previously
granted registration rights.
SECTION 8. MISCELLANEOUS.
(a) Amendments. The provisions of this Agreement may be amended only
upon the written consent of BCI and GECC, or, in the event there is more than
one holder of Registrable Securities, only upon the written consent of BCI and
the holders of a majority of the Registrable Securities.
(b) Assignment. This Agreement is binding upon the parties hereto and
their respective successors and assigns. GECC may not assign its rights
hereunder without the prior written consent of BCI in its sole discretion,
provided that GECC may transfer rights hereunder to any transferee to which
transfer is made under and in accordance with the Warrant or any such transferee
to which transfer is made under and in accordance with any warrant derived from
the Warrant or in the Warrant Series (as defined in the Warrant). Such
transferee may not further transfer any rights hereunder without the prior
written consent of BCI in its sole discretion. Transfer of the Registrable
Securities shall not, in itself, be deemed an assignment of rights hereunder.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken together
will constitute one and the same agreement.
(d) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered if delivered by hand or by electronic
transmission. If sent by reliable overnight delivery service and addressed as
follows, or at such other addresses as the parties hereto may from time to time
designate in writing, such notices, requests, demands and other communications
shall be deemed delivered upon the earlier of actual receipt or two business
days after being so duly sent.
To BCI:
Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Facsimile: (000) 000-0000
To GECC:
General Electric Capital Corporation
0 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Region Counsel
Facsimile: (000) 000-0000
To any other holder of Registrable Securities:
At such address as such holder notifies BCI from time to time.
(e) Termination. This Agreement shall automatically terminate for any
Registrable Shares at such time as (1) such Registrable Shares are publicly
traded or (2) such Registrable Shares may be publicly traded without
registration under the Securities Act or applicable state securities law.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement on the day and year first above written.
BOSTON CHICKEN, INC.
By: /s/ Xxxxxxxxxx Xxxxxxx
----------------------------------------
Its: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Its:
----------------------------------------
Xxxxx Xxxxxxx
Transaction & Syndication Senior Manager
