SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
ADVANTICA RESTAURANT GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-3487402
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
203 EAST MAIN ST., SPARTANBURG,SC 29319-9966
(Address of Principal Executive Offices) (ZIP Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of
pursuant to Section 12(b) of the securities pursuant to
Exchange Act and is effective Section 12(g) of the
pursuant to General Instruction A.(c), Exchange Act and is
please indicate by check mark. effective pursuant to
------ General Instruction A.(d),
please indicate by check
mark. X
------
Securities Act registration statement file number to which this
form relates:______________________(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on which
to be so Registered each class is to be registered
NONE NONE
- -------------------------------- --------------------------------
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
- ------------------------------------------------------------------------------
(Title of Class)
- ------------------------------------------------------------------------------
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Pursuant to the Amended Joint Plan (as defined and described below),
and as of January 7, 1998, the Amended Joint Plan's effective date (the
"Effective Date"), the Registrant (formerly known as Flagstar Companies, Inc.)
will have 100,000,000 authorized shares of common stock, par value $.01 per
share (the "Common Stock"), of which 40,000,000 shares will be issued and
outstanding. All of the Common Stock issued and outstanding as of the Effective
Date will be fully paid and non-assessable.
The Common Stock was authorized and will be issued as of the Effective
Date pursuant to the Amended Joint Plan of Reorganization (the "Amended Joint
Plan") of the Registrant and Flagstar Corporation, a wholly-owned subsidiary of
the Registrant, dated July 11, 1997 (amended November 7, 1997) and confirmed by
order of the United States Bankruptcy Court for the District of South Carolina
entered on November 12, 1997, pursuant to Chapter 11 of Title 11 of the United
States Code.
The holders of validly issued and outstanding shares of the Common
Stock will be entitled to one vote per share of record on all matters to be
voted upon by the Registrant's stockholders. At a meeting of stockholders at
which a quorum is present, a majority of the votes cast will decide all
questions, unless the matter is one upon which a different vote is required by
express provision of law or the Registrant's Restated Certificate of
Incorporation or Bylaws. There will be no cumulative voting with respect to the
election of directors (or any other matter). The holders of a majority of the
shares at a meeting at which a quorum is present will be able to elect all of
the directors to be elected.
The holders of the Common Stock will have no preemptive rights and have
no rights to convert the Common Stock into any other securities.
Subject to the rights of holders of preferred stock of the Registrant,
if any, in the event of a liquidation, dissolution or winding up of the
Registrant, holders of the Common Stock will be entitled to participate equally,
share for share, in all assets remaining after payment of liabilities.
The holders of the Common Stock will be entitled to receive ratably
such dividends as the Board of Directors may declare out of funds legally
available therefor, when and if so declared. As of the Effective Date, the
Registrant will enter into a $200 Million credit facility (the "Exit Facility")
as well as an indenture (the
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"Indenture") governing 11 1/4% Senior Notes due 2008 of the Registrant (the
"Senior Notes") issued pursuant to the Amended Joint Plan. The Exit Facility and
the Indenture governing the Senior Notes will contain negative covenants that
restrict, among other things, the ability of the Registrant to pay dividends.
The Registrant will enter into a Registration Rights Agreement (the
"Registration Rights Agreement") on the Effective Date with each Holder of 10%
or more of the Common Stock (a "Potentially Affiliated Holder"). Pursuant to the
Registration Rights Agreement, the Registrant will agree to file and use its
best efforts to cause to become effective a shelf registration statement
covering resales by the Potentially Affiliated Holders from time to time, and
use its best efforts to cause such shelf registration statement to remain
effective for a period of three years from the Effective Date (or five years
from the Effective Date if the Registrant becomes entitled to use a registration
statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act")). In addition, the Potentially Affiliated Holders may make
three written demands to the Registrant for registration under the Securities
Act of all or a part of the Common Stock issued to them pursuant to the Amended
Joint Plan, and may make unlimited demands for registrations so long as such
registrations may be effected on Form S-3 registration statements. In addition,
the Potentially Affiliated Holders will have customary "piggyback" registration
rights to include their shares of the Common Stock, subject to certain
limitations, in other registration statements filed by the Registrant under the
Securities Act.
The Registrant will agree to pay all expenses in connection with the
performance of the obligations to effect the shelf, demand and piggyback
registrations under the Securities Act of the Common Stock covered by the
Registration Rights Agreement, other than (a) underwriting fees, discounts,
commissions or other similar selling expenses attributable to the sale of the
Common Stock under the Registration Rights Agreement; and (b) any expenses
(other than internal expense of its own officers and employees) in connection
with any additional demand registration on Form S-3 after the three designated
demand registrations. The Registrant will agree to indemnify and hold harmless,
to the fullest extent permitted by law, each Potentially Affiliated Holder
against certain securities law liabilities (including, under certain
circumstances, liabilities unrelated to the participation of a Potentially
Affiliated Holder in a registered offering or sale of the Common Stock) and, in
lieu thereof, to contribute to payments required to be made by such Potentially
Affiliated Holders.
The obligations of the Registrant to effect and maintain the
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effectiveness of any registration required by the Registration Rights Agreement
will terminate upon the earliest of (a) the sale of all shares of the Commons
Stock subject to the Registration Rights Agreement that are held by the
Potentially affiliated Holders; (b) with respect to any Potentially Affiliated
Holder, upon notice from such Potentially Affiliated Holder that it no longer
needs the benefits of the Registration Rights Agreement; and (c) with respect to
any Potentially Affiliated Holder, when such Potentially Affiliated Holder has
received an opinion of recognized securities counsel to the effect that the
Common Stock held by such Potentially Affiliated Holder may be freely resold by
such Potentially Affiliated Holder without resort to the provisions of Rule 144.
ITEM 2. EXHIBITS.
Listed below are all Exhibits filed as a part of this registration
statement. Certain of the Exhibits to this registration statement, indicated by
an asterisk, are hereby incorporated by reference to other documents on file
with the Commission, to be a part hereof as of their respective dates.
Exhibit Number Description
*2.1 Amended Joint Plan of Reorganization of the
Registrant and Flagstar Corporation
(incorporated by reference to Exhibit 2.1 to
Form 8-K, dated November 12, 1997).
3.1 Restated Certificate of Incorporation of
Advantica Restaurant Group, Inc., dated
January 7, 1998.
3.2 Bylaws of Advantica Restaurant Group, Inc.,
as amended through January 7, 1998.
10.1 Registration Rights Agreement, dated as of
January 7, 1998, among Advantica Restaurant
Group, Inc. and each of the holders of
registrable securities named therein.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
ADVANTICA RESTAURANT GROUP, INC.
Date: January 7, 1998 By: /s/ Rhonda J. Parish
--------------------------------
Rhonda J. Parish
Senior Vice President
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RESTATED CERTIFICATE OF INCORPORATION
OF
FLAGSTAR COMPANIES, INC.
Flagstar Companies, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Flagstar Companies, Inc. Its original
Certificate of Incorporation was filed with the Secretary of State, under the
name SWT Acquisition Corp. ("SWT") on September 29, 1988. SWT filed a Restated
Certificate of Incorporation on June 29, 1989 (the "1989 Restatement"), changing
its name to TW Holdings, Inc., which subsequently changed its name to Flagstar
Companies, Inc. pursuant to a Certificate filed with the Secretary of State on
June 16, 1993.
2. This Restated Certificate of Incorporation restates and integrates
and amends the 1989 Restatement of the Corporation by restating the 1989
Restatement in its entirety.
3. The text of the 1989 Restatement as amended or supplemented
heretofore is further amended hereby to read as herein set forth in full:
FIRST: The name of the corporation is ADVANTICA RESTAURANT GROUP, INC.
(hereinafter referred to as the "Corporation")
SECOND: The registered office of the Corporation is to be located in
1209 Orange Street, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of the Corporation's registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the Delaware General
Corporation Law.
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FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is 125,000,000, of which 100,000,000 shall be shares of
Common Stock, par value $.01, and 25,000,000 shall be Preferred Stock, par value
$.10.
The issuance of nonvoting equity securities is prohibited.
Any unissued or treasury shares of the Preferred Stock may be issued
from time to time in one or more series for such consideration as may be fixed
from time to time by the Board of Directors. All shares of Preferred Stock shall
be of equal rank and shall be identical, except in respect of the particulars
that may be fixed by the Board of Directors as hereinafter provided pursuant to
authority which is hereby expressly vested in the Board of Directors; and each
share of a series shall be identical in all respects with the other shares of
such series, except that, if the dividends thereon are cumulative, the date from
which they shall be cumulative may differ. Before any shares of Preferred Stock
of any particular series shall be issued, the Board of Directors shall fix and
determine, and is hereby expressly empowered to fix and determine, in the manner
provided by law, the following particulars of the shares of such series so far
as not inconsistent with the provisions of this Article FOURTH applicable to all
series of Preferred Stock:
(1) the distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors in
creating such series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the Board
of Directors;
(2) the annual rate of dividends payable on shares of such
series, the conditions upon which such dividends shall be payable and
the date from which dividends shall be cumulative in the event the
Board of Directors determines that dividends shall be cumulative;
(3) the time or times which, and the price or prices at
which, shares of such series shall be redeemable;
(4) the amount payable on shares of such series in the event
of any liquidation, dissolution or winding up of the affairs of the
Company;
(5) voting rights, which may include and may be limited to,
for such series that have a preference over another class of equity
securities with respect to dividends, adequate provisions for the
election of directors representing such series in the event of default
in the payment of such dividends;
(6) the rights, if any, of the holders of shares of such
series to convert such shares into shares of Common Stock and the terms
and conditions of such conversion;
(7) the rights, if any, of the holders of shares of such
series to convert such shares into, or exchange such shares for, shares
of any other series of Preferred Stock, and the terms and conditions of
such conversion or exchange;
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(8) the requirement, if any, of any sinking fund or funds to
be applied to the purchase or redemption of shares of such series, and,
if so, the amount of such fund or funds and the manner of application.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The number of directors of the Corporation shall be such
as from time to time shall be fixed by, or in the manner provided in,
the By-Laws. Election of directors need not be by ballot unless the
By-Laws so provide.
(2) The Board of Directors shall have power without the assent
or vote of the stockholders of the Corporation to make, alter, amend,
change, add to or repeal the By-Laws of the Corporation; to authorize
and cause to be executed mortgages liens upon all or any part of the
property of the Corporation; to determine the use and disposition of
any surplus or net profits; and to fix the times for the declaration
and payment of dividends.
(3) The directors of the Corporation in their discretion may
submit any contract or act for approval or ratification at any annual
meeting of the stockholders of the Corporation or at any meeting of the
stockholders called for the purpose of considering any such act or
contract, and any contract or act that shall be approved or be ratified
by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting
and entitled to vote thereat (provided that a lawful quorum of
stockholders be there represented in person or by proxy) shall be as
valid and as binding upon the Corporation and upon all the stockholders
as though it had been approved or ratified by every stockholder of the
Corporation, whether or not the contract or act would otherwise be open
to legal attack because of directors' interest, or for any other
reason.
(4) In addition to the powers and authorities hereinbefore or
by statute expressly conferred upon them, the directors of the
Corporation are hereby empowered to exercise all such powers and do all
such acts and things as may be exercised or done by the Corporation;
subject nevertheless, to the provisions of the statutes of Delaware, of
this Certificate, and to any By-Laws from time to time made by the
stockholders; provided, however, that no By-Laws so made shall
invalidate any prior act of the directors of the Corporation which
would have been valid if such By-Law had not been made.
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SIXTH: The Corporation shall, to the full extent permitted by Section
145 of the Delaware General Corporation Law, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
SEVENTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by Section 102 of the Delaware
General Corporation Law, as the same may be amended or supplemented.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
4. The Certificate of Designations of the Corporation establishing the
powers, designations, preferences and rights of the Corporation's $2.25 Series A
Cumulative Convertible Exchangeable Preferred Stock, filed with the Secretary of
State on July 27, 1992, shall no longer have any force or effect and shall be
eliminated from the Certificate of Incorporation of the Corporation, in
accordance with the Plan of Reorganization (as defined below) and Section 151 of
the Delaware General Corporation Law, since none of the authorized shares of
such series are outstanding and none will be issued hereafter subject to such
Certificate of Designations previously filed with respect to such series.
5. Pursuant to the Amended Joint Plan (as defined and described below)
and the Certificate of Ownership and Merger Merging Flagstar Corporation into
Flagstar Companies, Inc. filed concurrently herewith, effective upon the
effective date of the Amended Joint Plan Flagstar Corporation, a wholly-owned
subsidiary of the Corporation and a joint debtor with the Corporation under the
Amended Joint Plan, shall be merged with and into the Corporation.
6. This Restated Certificate of Incorporation was duly adopted pursuant
to the Corporation's and Flagstar Corporation's Amended Joint Plan of
Reorganization (the "Amended Joint Plan"), dated July 11, 1997 (amended November
7, 1997) and confirmed by order of the United States Bankruptcy Court for the
District of South Carolina entered on November 12, 1997 pursuant to Chapter 11
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of Title 11 of the United States Code, and otherwise in accordance with
applicable provisions of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Flagstar Companies, Inc. has caused this
Certificate to be signed by Rhonda J. Parish, its Senior Vice President, General
Counsel and Secretary and attested by C. Robert Campbell, its Assistant
Secretary, this 5th day of January, 1998.
FLAGSTAR COMPANIES, INC.
By: /s/ Rhonda J. Parish
------------------------------
Its: Senior Vice President,
General Counsel, and Secretary
Attest:
By: /s/ C. R. Campbell
--------------------------
Its: Assistant Secretary
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BY-LAWS
OF
ADVANTICA RESTAURANT GROUP, INC.
(the "Corporation")
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corpora-
tion in the State of Delaware shall be in the City of Wilmington.
SECTION 2. OTHER OFFICES. The Corporation may have other offices,
either within or without the state of Delaware, at such place or places as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of the meeting shall be held at such place, either within or without the state
of Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting. If the date of
the annual meeting shall fall upon a legal holiday, the meeting shall be held on
the next business day.
At each annual meeting, the stockholders entitled to vote
shall elect a Board of Directors and they may transact such other corporate
business as shall be stated in the notice of the meeting. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
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Corporation, not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section. The Chairman of the
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this Section, and if he should so determine, he shall so declare
to the meeting, and any such business not properly brought before the meeting
shall not be transacted.
SECTION 2. OTHER MEETINGS. Special meetings of stockholders for any
purpose or purposes may be held at such time and place, within or without the
state of Delaware, as may be fixed by the Board of Directors and shall be stated
in the notice of meeting.
SECTION 3. INSPECTOR OF ELECTION. At each meeting of stockholders at
which an election of directors is to be held, the chairman of the meeting may,
but shall not be required to, appoint one person, who need not be a stockholder,
to act as inspector of election at such meeting. The inspector so appointed,
before entering on the discharge of his duties, shall take and subscribe to an
oath or affirmation to faithfully execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability, and
thereupon the inspector shall take charge of the polls and after the balloting
shall canvas the votes and make a certificate of the results of the vote taken.
No director or candidate for the office of director shall be appointed
inspector.
SECTION 4. VOTING. At each meeting of the stockholders, each
stockholder entitled to vote at such meeting in accordance with the terms of the
Certificate of Incorporation and in accordance with the provisions of these
By-laws shall be entitled to one vote, in person or by proxy, for each share of
stock entitled to vote held by such stockholder, but no proxy shall be voted
after three years from its date unless such proxy provides for a longer period.
Every proxy must be executed in writing by the stockholder or by the
stockholder's duly authorized attorney. Upon the demand of any stockholder, the
vote for directors and the vote upon any question before the meeting, shall be
by ballot. All elections for directors and all other questions shall be decided
by majority vote except as otherwise provided by the Certificate of
Incorporation or the laws of the state of Delaware.
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each, and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
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business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
SECTION 5. QUORUM. At all meetings of the stockholders, except as
otherwise required by law, by the Certificate of Incorporation or by these
By-laws, the presence, in person or by proxy, of stockholders of record holding
a majority of the shares of stock of the Corporation issued, outstanding and
entitled to vote thereat shall constitute a quorum for the transaction of
business. In case a quorum shall not be present at any meeting, the holders of
record of a majority of the shares of stock entitled to vote thereat, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned meeting
at which the requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at the meeting
as originally called; but only those stockholders entitled to vote at the
meeting as originally called shall be entitled to vote at any adjournment or
adjournments thereof.
SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman of the Board of Directors,
the President or the Secretary, or by resolution of the Board of Directors.
SECTION 7. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the Corporation, not less than ten nor
more than sixty days before the date of the meeting. No business other than that
stated in the notice shall be transacted at any meeting without the unanimous
consent of all the stockholders entitled to vote thereat.
SECTION 8. ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. Such written consent shall be filed in the minute
book of the Corporation.
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ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors of the Corporation
shall be not less than one nor more than fifteen. Within the limits above
specified, the number of directors shall be determined from time to time by the
stockholders or by the Board of Directors at any meeting thereof. The directors
shall be elected at the annual meeting of the stockholders. Each director shall
be elected to serve until his successor shall be elected and shall qualify or
until his earlier death, resignation or removal as provided in these By-laws.
Directors need not be stockholders. No person who has attained the age of 70
shall be eligible to stand for election or re-election by the stockholders or
otherwise to be appointed to serve as a director of the Corporation unless
pursuant to a special finding of the Board of Directors of the necessity for
such an individual to serve as a director.
SECTION 2. RESIGNATION. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing to the
Board of Directors, the Chairman of the Board of Directors, the President or the
Secretary. Unless otherwise specified therein, such resignation shall take
effect on receipt thereof. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum, by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen or until his earlier death, resignation or
removal. In the event that the resignation of any director shall specify that it
shall take effect at a future date, the vacancy resulting from such resignation
may be filled prospectively in the same manner as provided in this paragraph.
SECTION 4. REMOVAL. Except as hereinafter provided, any director or
directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote, at a special meeting of the stockholders
called for the purpose, and the vacancies thus created may be filled, at the
meeting held for the purpose of removal, by the affirmative vote of a majority
in interest of the stockholders entitled to vote.
Any director may be removed at any time for cause by the
action of the directors, at a special meeting called for that purpose, by the
vote in favor of removal of a majority of the total number of directors.
SECTION 5. INCREASE OF NUMBER. The maximum number of directors may be
increased by amendment of these By-laws by the affirmative vote of a majority of
the directors, though less than a quorum, or, by the affirmative vote of a
majority interest of the stockholders, at the annual meeting or at a special
meeting called for that purpose, and by like vote the additional directors may
be chosen at such meeting to hold office until the next annual election and
until their successors are elected and qualify or until their earlier death,
resignation or removal.
SECTION 6. POWERS. The Board of Directors shall exercise all of the
powers of the Corporation except such as are by law, by the Certificate of
Incorporation of the Corporation or by these By-laws conferred upon or reserved
to the stockholders.
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SECTION 7. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of two or more directors of the
Corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolu-
tion of the Board of Directors, or in these By-laws, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-laws of the Corporation; and, unless the resolution, these
By-laws, or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
SECTION 8. MEETINGS. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum be present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the directors may be held without
notice at such places and times as shall be determined from time to time by
resolution of the directors.
Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, the President or the Secretary upon the
request of any director on at least one day's advance notice to each director
and shall be held at such place or places as may be determined by the directors,
or shall be stated in the call of the meeting.
Unless otherwise restricted by the Certificate of Incor-
poration or by these By-laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 9. QUORUM. A majority of the total number of directors shall
constitute a quorum for the transaction of business. If a quorum shall be
present, the act of a majority of the directors present shall be the act of the
Board of Directors, except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given other than by announcement at the meeting which
shall be so adjourned.
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SECTION 10. COMPENSATION. Directors shall not receive any stated salary
for their services as directors or as members of committees, but by resolution
of the Board of Directors a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the Board of Directors, or of such committee
as the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or committee.
SECTION 12. RULES AND REGULATIONS. The Board of Directors may adopt
such rules and regulations for the conduct of its meetings and for the
management of the property, affairs and business of the Corporation as it may
deem proper, except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board of Directors, if any shall have been elected, a President,
a Treasurer, and a Secretary, all of whom shall be elected by the Board of
Directors and who shall hold office until their successors are elected and
qualified or until their earlier death, resignation or removal. In addition, the
Board of Directors may elect one or more Vice Presidents and such Assistant
Secretaries and Assistant Treasurers as they may deem proper. None of the
officers of the Corporation need be directors (except for the Chairman of the
Board of Directors, if any) or stockholders. The officers shall be elected
annually by the Board of Directors. Any person may hold one or more offices. The
compensation of all officers of the Corporation shall be fixed by the Board of
Directors.
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SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it may deem advisable, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors. The
Board of Directors may delegate to any officer or officers the power to appoint
any such officer, to fix their respective terms of office, to prescribe their
respective powers and duties, to remove them and to fill vacancies in any such
offices.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors, if one be
elected, shall preside at all meetings of the Board of Directors and of the
stockholders, and absent instructions to the contrary by the Board of Directors,
shall exercise general supervision over the property, affairs and business of
the Corporation, shall authorize the other officers of the Corporation to
exercise such powers as he may deem to be in the best interests of the
Corporation and shall have and perform such other duties as from time to time
may be assigned to him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall have such duties as may from
time to time be delegated to him by the Board of Directors. In the event there
shall be no Chairman, the President shall exercise all powers conferred on the
Chairman by Section 3 of this Article. In the event a Chairman is elected, the
President shall be the Chief Executive Officer of the Corporation and, in the
absence or disability of the Chairman, shall have the powers of the Chairman.
SECTION 5. VICE PRESIDENTS. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him by the directors. The
Board of Directors may further designate the area or areas of responsibility
assigned to a Vice President by appropriate words, such as Senior Vice President
or Group Vice President added to the title of the office or offices held by such
Vice President.
SECTION 6. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositaries as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors, the Chairman or the
President, taking proper vouchers for such disbursements. He shall render to the
Chairman, the President and the Board of Directors at the regular meetings of
the Board of Directors, or whenever they may request it, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
SECTION 7. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chairman, the President, or the directors, or stockholders, upon whose
requisition the meeting is called as provided in these By-laws. He shall record
all the proceedings of the meetings of the Corporation and of the directors, in
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a book to be kept for that purpose, and shall perform such other duties as may
be assigned to him by the directors, the Chairman or the President. He shall
have the custody of the seal of the Corporation and shall affix the same to all
instruments requiring it, when authorized by the directors or the President, and
attest the same.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
SECTION 9. RESIGNATION. Any officer may resign at any time, unless
otherwise provided in any contract with the Corporation, by giving written
notice to the Chairman, if any, or the President or the Secretary. Unless
otherwise specified therein, such resignation shall take effect upon receipt
thereof.
SECTION 10. REMOVAL. Any officer may be removed at any time by an
affirmative vote of a majority of the Board of Directors, with or without cause.
Any officer not elected by the Board of Directors may be removed in such manner
as may be determined by, or pursuant to delegation from the Board of Directors.
SECTION 11. VACANCIES. If a vacancy shall occur in any office, such
vacancy may be filled for the unexpired portion of the term by the Board of
Directors.
SECTION 12. SURETY BONDS. In the event the Board of Directors shall so
require, any officer or agent of the Corporation shall execute to the
Corporation a bond in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned on the faithful performance of the officer's
duties to the Corporation.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. A certificate or certificates of
stock, signed by the Chairman of the Board of Directors, if one be elected, the
President or a Vice President, and the Treasurer or an Assistant Treasurer, or
Secretary or an Assistant Secretary, and sealed with the seal of the
Corporation, shall be issued to each stockholder certifying the number of shares
owned by him in the Corporation. Any of or all of the signatures may be
facsimiles. The certificate or certificates of stock shall be in such form as
the Board of Directors may from time to time adopt and shall be countersigned
and registered in such manner, if any, as the Board of Directors may prescribe.
In case any officer who shall have signed, or whose facsimile signature shall
have been used on any such certificate, shall cease to be such officer of the
Corporation before such certificate shall have been issued by the Corporation,
such certificate may nevertheless be adopted by the Corporation and be issued
and delivered as though the person who signed such certificate, or whose
facsimile signature shall have been used thereon, had not ceased to be such
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officer; and such issuance and delivery shall constitute adoption of such
certificate by the Corporation.
There shall be entered on the books of the Corporation the
number of each certificate issued, the number (and class or series, if any) of
shares represented thereby, the name and address of the person to whom such
certificate was issued and the date of issuance thereof.
SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES. A new certificate
of stock may be issued in the place of any certificate theretofore issued by the
Corporation, alleged to have been lost, stolen or destroyed, and the directors
may, in their discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representatives, to give the Corporation a bond, in
such sum as they may direct, not exceeding double the value of the stock, to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of any such certificate, or the issuance of any such
new certificate and to provide such evidence of loss, theft or destruction as
the Board of Directors may require.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only upon its books by the holders of record thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered, along with such
evidence of the authenticity of such transfer, authorization and other matters
as the Corporation or its agents may reasonably require, to the Corporation by
the delivery thereof to the person in charge of the stock and transfer books, or
to such other person as the directors may designate, by whom they shall be
cancelled, and new certificates shall thereupon be issued. A record shall be
made of each transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer.
SECTION 4. REGULATIONS, TRANSFER AGENTS AND REGISTRARS. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issuance and transfer of certificates for shares of the stock of
the Corporation, may appoint transfer agents or registrars, or both, and may
require all certificates of stock to bear the signature of either or both.
Nothing herein shall be construed to prohibit the Corporation from acting as its
own transfer agent at any of its offices.
SECTION 5. STOCKHOLDERS RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
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meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 6. SHAREHOLDERS RECORD OWNERSHIP. The Corporation shall be
entitled to recognize the exclusive right of a person registered as such on the
books of the Corporation as the owner of shares of the Corporation's stock to
receive dividends and to vote as such owner. The Corporation shall not be bound
to recognize any equitable or other claim to or interest in such shares on the
part of any other person, regardless of whether the Corporation shall have
express or other notice thereof, except as otherwise provided by law.
SECTION 7. DIVIDENDS AND RESERVES. Subject to the applicable provi-
sions of law or of the Certificate of Incorporation, the Board of Directors may,
out of funds legally available therefor, at any regular or special meeting,
declare dividends upon the capital stock of the Corporation as and when they
deem expedient. Before declaring any dividend there may be set apart out of any
funds of the Corporation available for dividends, such sum or sums as the
directors from time to time in their discretion deem proper for working capital,
or as a reserve fund to meet contingencies, or for equalizing dividends, or for
the purpose of repairing, maintaining or increasing the property or business of
the Corporation or for such other purposes as the directors shall deem conducive
to the interests of the Corporation. The Board of Directors may, in its
discretion, modify or abolish any such reserve at any time.
SECTION 8. SEAL. The corporate seal shall be circular in form and
shall contain the name of the Corporation, the year of its creation and the
words "CORPORATE SEAL, DELAWARE." Said seal may be used by causing it or a
facsimile thereof to be impressed, affixed, reproduced, engraved, printed or
otherwise represented.
SECTION 9. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 10. EXECUTION OF INSTRUMENTS. All agreements, deeds, contracts,
proxies, covenants, bonds, checks, drafts or other orders for the payment of
money, bills of exchange, notes, acceptances and endorsements, and all evidences
of indebtedness and other documents, instruments or writings of any nature
whatsoever, issued in the name of the Corporation, shall be signed by such
officers, agents or employees of the Corporation, or by any one of them, and in
such manner, as from time to time may be determined, either generally or in
specific instances, by the Board of Directors or by such officer or officers to
whom the Board of Directors may delegate the power to so determine.
SECTION 11. STOCK OF OTHER CORPORATIONS. Subject to such limitations as
the Board of Directors may from time to time prescribe, any officer of the
Corporation shall have full power and authority on behalf of the Corporation to
attend, to act and vote at, and to waive notice of, any meeting of stockholders
of any corporations, shares of stock of which are owned by or stand in the name
of the Corporation, and to execute and deliver proxies and actions in writing
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for the voting of any such shares, and at any such meeting or by action in
writing may exercise on behalf of the Corporation any and all rights and powers
incident to the ownership of such shares.
SECTION 12. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required by these By-laws to be given, personal notice is not meant unless
expressly so stated, and any notice requirement shall be deemed satisfied when
given either by personal notice, by depositing the same in the United States
mail, postage prepaid, addressed to the person entitled thereto at his address
as it appears on the records of the Corporation (such notice shall be deemed to
have been given on the day of such mailing) or by telecopier transmission.
Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under
the provisions of any law, or under the provisions of the Certificate of
Incorporation of the Corporation or these By-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting, whether of stock-
holders (in person or by proxy) or of directors or of any committee of the Board
of Directors, shall constitute a waiver of notice of such meeting, except when
such person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not legally called or convened.
SECTION 13. BOOKS, ACCOUNTS AND OTHER RECORDS. Except as otherwise
provided by law, the books, accounts and other records of the Corporation shall
be kept at such place or places (within or without the state of Delaware) as the
Board of Directors, the Chairman or the President may from time to time
designate.
SECTION 14. INDEMNIFICATION. The Corporation shall, to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law, as the
same exists or may hereafter be amended, indemnify all persons whom it may
indemnify pursuant thereto.
ARTICLE VI
AMENDMENTS
These By-laws may be altered, amended or repealed and By-laws may be
made at any annual meeting of the stockholders or at any special meeting thereof
if notice of the proposed alteration or repeal or By-law or By-laws to be made
be contained in the notice of such special meeting, by the affirmative vote of a
majority of the stock issued and outstanding and entitled to vote thereat, or by
the affirmative vote of a majority of the Board of Directors, at any regular
meeting of the Board of Directors, or at any special meeting of the Board of
Directors, if notice of the proposed alteration or repeal, or By-law or By-laws
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to be made, be contained in the notice of such special meeting; provided,
however, that no By-law provision validly adopted or amended by action of the
stockholders may be repealed or amended by the Board of Directors, and no By-law
provision repealed by action of the stockholders may be added subsequent to the
date of such repeal by the Board of Directors, such actions with respect to such
By-law provisions being reserved to the stockholders.
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ADVANTICA RESTAURANT GROUP, INC.
---------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
---------------------------------------------------
DATED AS OF JANUARY 7, 1998
<PAGE>
TABLE OF CONTENTS
Page
1. REGISTRATION RIGHTS ................................................... 1
1.1 Shelf Registration ............................................... 1
1.2 Required Registration ............................................ 3
1.3 Incidental Registration .......................................... 5
1.4 Company Registration ............................................. 6
1.5 Registration Procedures .......................................... 6
1.6 Reasonable Investigation ......................................... 9
1.7 Registration Expenses ............................................ 10
1.8 Holdback Agreements; Registration Rights to Others ............... 10
1.9 Other Registration of Common Stock ............................... 11
1.10 Availability of Information ...................................... 11
2. INDEMNIFICATION; CONTRIBUTION; EXPENSES ............................... 11
2.1 Indemnification; Contribution .................................... 11
2.2 Indemnification for Controlling Person Liability ................. 12
2.3 Control of Defense ............................................... 13
2.4 Contribution ..................................................... 14
2.5 Advancement of Expenses .......................................... 14
3. TERMINATION ........................................................... 15
3.1 Termination With Respect to Shares Sold in a Public Offering ..... 15
3.2 Termination Upon Ability to Freely Resell ........................ 15
4. DEFINED TERMS ......................................................... 16
5. MISCELLANEOUS ......................................................... 20
5.1 Notices .......................................................... 20
5.2 Amendments and Waivers ........................................... 20
5.3 Governing Law .................................................... 20
5.4 Jurisdiction; Jury Trial ......................................... 21
5.5 Counterparts ..................................................... 21
5.6 Descriptive Headings; Sections ................................... 21
5.7 Severability ..................................................... 21
Annex 1 -- Names and Addresses of Holders
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (as the same may hereafter be amended,
supplemented or modified, this "AGREEMENT"), dated as of January 7, 1998, among
ADVANTICA RESTAURANT GROUP, INC. (together with its successors and assigns, the
"COMPANY"), a Delaware corporation, and each of the Holders (together with their
successors and assigns, the "HOLDERS") of Registrable Securities named on Annex
1 hereto.
In consideration of the mutual promises herein contained, the Company
and the Holders mutually agree as follows:
1. REGISTRATION RIGHTS.
1.1 SHELF REGISTRATION.
(A) FILING AND EFFECTIVENESS. On or prior to the Shelf Filing
Date, the Company will file a "shelf" registration statement (the
"SHELF REGISTRATION") on an appropriate form pursuant to Rule 415 under
the Securities Act or any similar rule that may be adopted by the SEC
with respect to dispositions of all of the Registrable Securities in
such manner or manners specified by the Holders. The Company agrees to
use its best efforts to cause the Shelf Registration to be declared
effective as promptly as is practicable after such filing (and in any
event, prior to the Shelf Effective Date) and agrees to use its best
efforts to keep the Shelf Registration effective (and to take any and
all other actions necessary in order to permit public resale of the
Registrable Securities covered by the Shelf Registration) for a period
(the "SHELF EFFECTIVE PERIOD") beginning on the date such Shelf
Registration shall first be declared effective under the Securities Act
and ending upon the earliest to occur of:
(i) the fifth (5th) anniversary of the Effective
Date; PROVIDED, HOWEVER, that if a registration statement on
Form S-3 (or such successor form as is prescribed by the SEC)
is not available to the Company (other than as a result of
action taken in bad faith by the Company to cause such Form
S-3 to become unavailable) on the third (3rd) anniversary of
the Effective Date, the Shelf Effective Period shall terminate
(if not terminated earlier pursuant to Section or Section ) on
such third (3rd) anniversary of the Effective Date;
(ii) such date as no Registrable Securities shall re-
main subject to the terms and conditions set forth in this
Agreement; and
(iii) the date on which the provisions of this
Section terminate in accordance with the provisions of Section
.
The Company further agrees, if necessary, to supplement or make
amendments to such Shelf Registration, if required by the registration
form utilized by the Company for the Shelf Registration or by the
instructions applicable to such registration form or by the Securities
Act, and the Company agrees to furnish to the Holders copies of any
such supplement or amendment prior to its being used or filed with the
SEC.
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(B) APPROVAL OF SHELF REGISTRATIONS. If the Requisite Holders
shall have approved the filing of any Shelf Registration as provided in
Section , but any Holder elects not to participate therein, then such
Holder shall have the right, in its sole discretion, to withdraw from
the Shelf Registration upon written notice to the Company. If the
Company receives notice of such withdrawal from any Holder wishing to
withdraw from the Shelf Registration, then the Company shall not name
such Holder in the registration statement or, in the case of withdrawal
in connection with any amendment or supplement to a registration
statement in which such Holder is already named, shall amend such
registration statement to delete references to such Holder, and to
withdraw the Registrable Securities of such Holder, from the
registration statement. The Shelf Registration shall not be considered
effective with respect to any such withdrawing Holder.
(C) SELECTION OF UNDERWRITERS. If any offering pursuant to a
Shelf Registration is in the form of an underwritten offering, the
underwriters of such offering shall be one or more underwriting firms
of recognized standing selected by the Holders making such offering and
reasonably acceptable to the Company. In the event of an underwritten
offering pursuant to the Shelf Registration, no Securities of the
Company (other than the Registrable Securities) shall be included in
any such offering without the prior written consent of all Holders of
Registrable Securities participating in such offering.
(D) NOTICE OF SALES UNDER SHELF REGISTRATION. Other than in
connection with an underwritten offering, each Holder intending to sell
any Registrable Securities under the Shelf Registration agrees to
provide the Company with written notice of such intent (a "NOTICE OF
INTENT"), which notice need state only the identity of the Holder and
that the Holder intends to sell Registrable Securities under the Shelf
Registration. No Holder shall deliver any Registrable Security for the
purpose of sale or delivery after sale, or otherwise consummate any
such sale, under such Shelf Registration until the fourth (4th)
Business Day following the date it delivers to the Company the Notice
of Intent. In the event that the Company notifies such Holder in
writing (a "MATERIAL EVENT NOTICE"), delivered to such Holder within
three (3) Business Days after the date the Notice of Intent is
delivered, that an event or events have occurred which, in the good
faith opinion of the Company, require the then-current prospectus to be
amended or supplemented in order that the prospectus not contain any
misstatement of a material fact or not omit to state 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, then the Holder shall not deliver any Registrable Security
for the purpose of sale or delivery after sale, or otherwise consummate
any such sale, under such Shelf Registration until the earlier to occur
of the fourteenth (14th) day after delivery of the Material Event
Notice and the date the Company delivers to such Holder a new
prospectus or prospectus supplement correcting all such material
misstatements or omissions. In the event that the Company delivers a
Material Event Notice, the Company shall prepare and deliver to such
Holder, as promptly as practicable but in any event within fourteen
(14) days after the date of the Material Event Notice, a new prospectus
or prospectus supplement correcting all such material misstatements or
omissions. Each Holder shall cooperate with the Company in connection
with any such sale by supplying the Company, promptly following any
request, with any information concerning the terms of such sale
necessary to prepare any
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such new prospectus or supplement to the prospectus to be used
in connection with such sale.
Any Holder intending to sell any Registrable Securities under
the Shelf Registration pursuant to an underwritten offering shall
deliver a Notice of Intent to the Company no later than fourteen (14)
days prior to the closing of such offering and otherwise in accordance
with the reasonable requirements of the underwriters therefor.
1.2 REQUIRED REGISTRATION.
(A) FILING OF REGISTRATION STATEMENT. Subject to Section , the
Company will, upon the written request of the Initiating Holders given
at any time requesting that the Company effect the registration under
the Securities Act of all or part of such Initiating Holders'
Registrable Securities and specifying the Registrable Securities to be
sold and the intended method of disposition thereof, promptly give
written notice of such requested registration to all Holders of
Registrable Securities, and thereupon will use its best efforts to
effect the registration (the "REQUIRED REGISTRATION") under the
Securities Act of:
(i) the Registrable Securities that the Company has
been so requested to register by the Initiating Holders; and
(ii) all other Registrable Securities that the
Company has been requested to register by the Holders thereof
by written request given to the Company within thirty (30)
days after the giving of such written notice by the Company
(which request shall specify the Registrable Securities to be
sold and the intended method of disposition of such
Registrable Securities);
all to the extent required to permit the disposition (in accordance
with the intended method thereof as aforesaid) of the Registrable
Securities so to be registered.
(B) TIME FOR FILING AND EFFECTIVENESS. On or before the date
which is ninety (90) days after the request for such registration, the
Company shall file with the SEC the Required Registration with respect
to all Registrable Securities to be so registered, and shall use its
best efforts to cause such Required Registration to become effective as
promptly as practicable after the filing thereof, but in no event later
than the day which is one hundred eighty (180) days after the request
for such registration.
(C) SELECTION OF UNDERWRITERS. If Registrable Securities that
the Company has been requested to register pursuant to a Required
Registration are to be disposed of in an underwritten public offering,
the underwriters of such offering shall be one or more underwriting
firms of recognized standing selected by the Requisite Holders and
reasonably acceptable to the Company.
(D) PRIORITY ON REQUIRED REGISTRATIONS. If the managing
underwriter shall advise the Company in writing (with a copy to each
Holder of Registrable Securities requesting sale) that, in such
underwriter's opinion, the number of shares of Securities requested to
be included in such Required Registration exceeds the number that can
be sold in such offering within a price range acceptable to the Company
(such writing to
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state the basis of such opinion and the approximate number of shares of
Securities that may be included in such offering without such effect),
the Company will include in such Required Registration, to the extent
of the number of shares of Securities that the Company is so advised
can be sold in such offering:
(i) FIRST, Registrable Securities requested to be
sold by the Holders pursuant to this Section , PRO RATA among
the Holders requesting sale on the basis of the number of
shares requested to be so registered by such Holders; and
(ii) SECOND, all other shares of Common Stock
proposed to be registered by the Company and any other
stockholders, in such proportions as the Company and such
other stockholders shall agree.
(E) WHEN REQUIRED REGISTRATION IS DEEMED EFFECTED. A Required
Registration pursuant to this Section shall not be deemed to have been
effected for purposes of Section if:
(i) the registration does not become effective and
remain effective for a period of at least one hundred eighty
(180) days (or such shorter period as is necessary for all
Registrable Securities offered thereunder to have been sold),
without interference by the issuance by the SEC of any stop
order with respect thereto;
(ii) the Requisite Holders withdraw their request for
registration in its entirety at any time because the Requisite
Holders reasonably believed that the registration statement or
any prospectus related thereto contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements made therein (in the case of any prospectus, in
light of the circumstances under which they were made) not
misleading, notified the Company of such fact and requested
that the Company correct such alleged misstatement or
omission, and the Company has refused to correct such alleged
misstatement or omission; or
(iii) the conditions to closing specified in the
purchase agreement or underwriting agreement, if any, entered
into in connection with such Required Registration are not
satisfied, other than by reason of some act or omission by the
Holders of the Registrable Securities that were to have been
registered and sold.
(F) LIMITATION ON NUMBER OF REQUIRED REGISTRATIONS;
REGISTRATIONS ON FORM S-3. The Company shall be required to file and
effect only three (3) Required Registrations pursuant to this Section
that are deemed to have been effected under Section . Notwithstanding
the foregoing, the Company shall be required to file and effect
additional Required Registrations, which Required Registrations shall
not count toward the limitation set forth in the preceding sentence,
if:
(i) each such additional Required Registration is
filed and effected on a registration statement on Form S-3
(or any similar successor form permitting
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incorporation by reference of the reports filed by the Company
pursuant to section 13 of the Exchange Act); and
(ii) the Holders of Registrable Securities agree to
pay, and in fact pay, in addition to any underwriting fees,
discounts or commissions attributable to the sale of
Registrable Securities and other selling expenses, discounts
or commissions incurred in connection with the sale of
Registrable Securities, all Registration Expenses in
connection with such additional Required Registration (other
than Registration Expenses described in clauses (c), (e) and
(g) of the definition of Registration Expenses, which shall in
every event be borne by the Company).
1.3 INCIDENTAL REGISTRATION.
(A) FILING OF REGISTRATION STATEMENT. If the Company at any
time proposes to register any of its Common Stock (an "INCIDENTAL
REGISTRATION") under the Securities Act (other than pursuant to a
registration statement on Form S-4 or Form S-8 or any successor forms
thereto, in connection with an offer made solely to existing Security
holders or employees of the Company), for sale in a Public Offering, it
will each such time give prompt written notice to all Holders of its
intention to do so, which notice shall be given to all such Holders at
least thirty (30) days prior to the date that a registration statement
relating to such registration is proposed to be filed with the SEC.
Upon the written request of any Holder to include its shares under such
registration statement (which request shall be made within fifteen (15)
days after the receipt of any such notice and shall specify the
Registrable Securities intended to be disposed of by such Holder), the
Company will use its best efforts to effect the registration of all
Registrable Securities that the Company has been so requested to
register by such Holder; PROVIDED, HOWEVER, that 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 Incidental Registration, the Company shall
determine for any reason not to register such Securities, the Company
may, at its election, give written notice of such determination to each
Holder and, thereupon, shall be relieved of its obligation to register
any Registrable Securities of such Persons in connection with such
Incidental Registration.
(B) SELECTION OF UNDERWRITERS. Notice of the Company's
intention to register such Securities shall designate the proposed
underwriters of such offering (which shall be one or more underwriting
firms of recognized standing) and shall contain the Company's agreement
to use its best efforts, if requested to do so, to arrange for such
underwriters to include in such underwriting the Registrable Securities
that the Company has been so requested to register pursuant to this
Section , it being understood that the Holders shall have no right to
select different underwriters for the disposition of their Registrable
Securities.
(C) PRIORITY ON INCIDENTAL REGISTRATIONS. If the managing
underwriter shall advise the Company in writing (with a copy to each
Holder of Registrable Securities requesting sale) that, in such
underwriter's opinion, the number of shares of Securities requested to
be included in such Incidental Registration exceeds the number that can
be sold in such offering within a price range acceptable to the Company
(such writing to
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state the basis of such opinion and the approximate number of shares of
Securities that may be included in such offering without such effect),
the Company will include in such Incidental Registration, to the extent
of the number of shares of Securities that the Company is so advised
can be sold in such offering:
(i) in the case of any Registration initiated by the
Company for the purpose of selling Securities for its own
account:
(A) FIRST, shares that the Company proposes
to issue and sell for its own account; and
(B) SECOND, Registrable Securities requested
to be sold by the Holders pursuant to this Section
and all Securities proposed to be registered by other
stockholders, PRO RATA among such Holders and other
stockholders on the basis of the number of shares
requested to be so registered by such Holders and
other stockholders; and
(ii) in the case of any Registration initiated by any
other stockholder pursuant to demand or required registration
rights in favor of such other stockholder:
(A) FIRST, Registrable Securities requested
to be sold by the other stockholders requesting such
Registration;
(B) SECOND, Registrable Securities requested
to be sold by the Holders pursuant to this Section
and all Securities proposed to be registered by
stockholders other than those referred to in Section
(c)(ii)(A), PRO RATA among such Holders and
stockholders on the basis of the number of shares
requested to be so registered by such Holders and
stockholders; and
(C) THIRD, shares that the Company proposes
to issue and sell for its own account.
1.4 COMPANY REGISTRATION. If the Securities Act (whether by statutory
amendment, amendment of the rules and regulations thereunder or both) is amended
after the date hereof to provide for a Companies Registration Scheme, and the
Company is or becomes eligible to participate in the Companies Registration
Scheme, then the Company, promptly following the request of the Required
Holders, shall use its reasonable best efforts to register promptly under the
Companies Registration Scheme so as to facilitate the resale under the
registration statement contemplated by such Companies Registration Scheme of the
Registrable Securities in accordance with the method or methods of distribution
contemplated by the Holders.
1.5 REGISTRATION PROCEDURES. The Company will use its best efforts to
effect each Registration, and to cooperate with the sale of such Registrable
Securities in accordance with the intended method of disposition thereof as
quickly as practicable, and the Company will as expeditiously as possible:
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(a) subject, in the case of an Incidental Registration, to the
proviso to Section , prepare and file with the SEC the registration
statement and use its best efforts to cause the Registration to become
effective; PROVIDED, HOWEVER, that before filing any registration
statement or prospectus or any amendments or supplements thereto, the
Company will furnish to the Holders of the Registrable Securities
covered by such registration statement, their counsel, and the
underwriters, if any, and their counsel, copies of all such documents
proposed to be filed as promptly as practicable prior thereto, which
documents will be subject to the reasonable review of such Holders,
their counsel and the underwriters; and the Company will not file any
registration statement or amendment thereto or any prospectus or any
supplement thereto (including such documents incorporated by reference)
to which the Requisite Holders shall reasonably object after having had
a reasonable opportunity for review and comment;
(b) subject, in the case of an Incidental Registration, to the
proviso to Section , prepare and file with the SEC such amendments and
post-effective amendments to any registration statement and any
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement; and
cause the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act;
(c) furnish to each Holder of Registrable Securities included
in such Registration and the underwriter or underwriters, if any,
without charge, at least one signed copy of the registration statement
and any post-effective amendment thereto, upon request, and such number
of conformed copies thereof and such number of copies of the prospectus
(including each preliminary prospectus and each prospectus filed under
Rule 424 under the Securities Act), any amendments or supplements
thereto and any documents incorporated by reference therein, as such
Holder or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities being sold by such Holder (it
being understood that the Company consents to the use of the prospectus
and any amendment or supplement thereto by each Holder of Registrable
Securities covered by such registration statement and the underwriter
or underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by the prospectus or any amendment
or supplement thereto);
(d) notify each Holder of any stop order or other order
suspending the effectiveness of any registration statement, issued or
threatened by the SEC in connection therewith, and take all reasonable
actions required to prevent the entry of such stop order or to remove
it or obtain withdrawal of it at the earliest possible moment if
entered;
(e) if requested by the managing underwriter or underwriters,
if any, or any Holder in connection with any sale pursuant to a
registration statement, promptly incorporate in a prospectus supplement
or post-effective amendment such information relating to such
underwriting as the managing underwriter or underwriters, if any, or
such Holder reasonably requests to be included therein; and make all
required filings of such prospectus supplement or post-effective
amendment as soon as practicable after being
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notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(f) on or prior to the date on which a Registration is
declared effective, use its best efforts to register or qualify, and
cooperate with the Holders of Registrable Securities included in such
Registration, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the
Registrable Securities covered by such Registration for offer and sale
under the securities or "blue sky" laws of each state and other
jurisdiction of the United States as any such Holder or the managing
underwriter, if any, reasonably requests in writing; use its best
efforts to keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the
period such registration statement is required to be kept effective;
and do any and all other acts or things necessary or advisable to
enable the disposition in all such jurisdictions reasonably requested
of the Registrable Securities covered by such Registration; PROVIDED,
HOWEVER, that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process in
any such jurisdiction where it is not then so subject;
(g) in connection with any sale pursuant to a Registration,
cooperate with the Holders and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery
of certificates (not bearing any restrictive legends) representing
Securities to be sold under such Registration, and enable such
Securities to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or such Holders may
request;
(h) use its best efforts to cause the Registrable Securities
to be registered with or approved by such other governmental agencies
or authorities within the United States and having jurisdiction over
the Company as may reasonably be necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Securities;
(i) enter into such agreements (including underwriting
agreements in customary form) and take such other actions as the
Requisite Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(j) use its best efforts to obtain:
(i) at the time of effectiveness of each
Registration, a comfort letter from the Company's independent
certified public accountants covering such matters of the type
customarily covered by cold comfort letters as the Requisite
Holders and, if applicable, the underwriters reasonably
request; and
(ii) at the time of any underwritten sale pursuant to
the registration statement, a bring-down comfort letter, dated
as of the date of such sale, from the Company's independent
certified public accountants covering such matters of the type
customarily covered by comfort letters as the Requisite
Holders and, if applicable, the underwriters reasonably
request;
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(k) use its best efforts to obtain, at the time of
effectiveness of each Incidental Registration and at the time of any
sale pursuant to each Registration, an opinion or opinions, reasonably
acceptable to the Requisite Holders in form and scope, from counsel for
the Company in customary form;
(l) notify each Holder upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in
such Registration, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
promptly prepare, file with the SEC and furnish to each Holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers or prospective purchasers of such 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 under which they are made;
(m) otherwise comply with all applicable rules and regulations
of the SEC, and make generally available to its Security holders (as
contemplated by section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities
Act, as applicable;
(n) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
from and after a date not later than the effective date of such
Registration; and
(o) obtain and maintain the registration of the Common Stock
under either section 12(b) or section 12(g) of the Exchange Act; and
use its best efforts to cause all Registrable Securities covered by
each Registration to be listed subject to notice of issuance, prior to
the date of first sale of such Registrable Securities pursuant to such
Registration, on:
(i) either the New York Stock Exchange, Inc., or the
NASDAQ National Market; and
(ii) each other securities exchange, if any, on which
the Common Stock is then listed.
The Company may require each Holder of Registrable Securities that will be
included in such Registration to furnish the Company with such information in
respect of such Holder of its Registrable Securities that will be included in
such Registration as the Company may reasonably request in writing and as is
required by applicable laws or regulations.
1.6 REASONABLE INVESTIGATION. The Company shall:
(a) give the Holders of Registrable Securities, their under-
writers, if any, and their respective counsel and accountants the
opportunity to participate in the preparation
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of the registration statement, each prospectus included therein or
filed with the SEC and each amendment thereof or supplement thereto;
(b) give each such Holder and underwriter reasonable
opportunities to discuss the business of the Company with its officers,
counsel and the independent public accountants who have certified its
financial statements;
(c) make available for inspection by any Holder of Registrable
Securities included in any Registration, any underwriter participating
in any disposition pursuant to any Registration, and any attorney,
accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of the Company; and
(d) cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Person in
connection with such Registration;
in each such case, as shall be reasonably necessary, in the opinion of such
Holder or such underwriter, to enable it to conduct a "reasonable investigation"
within the meaning of section 11(b)(3) of the Securities Act and to satisfy the
requirement of reasonable care imposed by section 12(a)(2) of the Securities
Act.
1.7 REGISTRATION EXPENSES. Other than as provided in Section (ii), the
Company will pay all Registration Expenses in connection with each registration
of Registrable Securities, including, without limitation, any such registration
not effected by the Company.
1.8 HOLDBACK AGREEMENTS; REGISTRATION RIGHTS TO OTHERS.
(a) In connection with each underwritten sale of Registrable
Securities, the Company agrees, and each Holder by acquisition of such
Registrable Securities agrees, to enter into customary holdback
agreements concerning sale or distribution of Registrable Securities
and other equity Securities of the Company, except, in the case of any
Holder, to the extent that such Holder is prohibited by applicable law
or exercise of fiduciary duties from agreeing to withhold Registrable
Securities from sale. Without limiting the scope of the term
"fiduciary," a Holder shall be deemed to be acting as a fiduciary if
its actions or the Registrable Securities proposed to be sold are
subject to the Employee Retirement Income Security Act of 1974, as
amended, or the Investment Company Act of 1940, as amended, or if such
Registrable Securities are held in a separate account under applicable
insurance law or regulation. Notwithstanding the foregoing, no Holder
who has been engaged on behalf of an Account shall be required to hold
back Registrable Securities attributable to such Account if either:
(i) such Account directs such Holder to dispose of
some or all of such Registrable Securities attributable to
such Account; PROVIDED, HOWEVER, that any holdback agreement
relating to such underwritten sale shall continue to apply to
Registrable Securities attributable to such Account which such
Account has not directed such Holder to sell, and PROVIDED,
FURTHER, that such Holder shall not have directly or
indirectly induced such Account to make such sale; or
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(ii) such Securities have ceased to be Registrable
Securities pursuant to clause (v) of the definition of
Registrable Securities.
(b) If the Company shall at any time after the date hereof
provide to any holder of any Securities of the Company rights with
respect to the registration of such Securities under the Securities
Act, such rights shall not be in conflict with or adversely affect any
of the rights provided in this Section to the Holders of Registrable
Securities.
1.9 OTHER REGISTRATION OF COMMON STOCK. If any shares of Common Stock
require registration with or approval of any governmental authority under any
federal or state law (other than the Securities Act) before such shares may be
issued upon conversion, the Company will, at its expense and as expeditiously as
possible, use its best efforts to cause such shares to be duly registered or
approved, as the case may be.
1.10 AVAILABILITY OF INFORMATION. The Company will comply with the
reporting requirements of sections 13 and 15(d) of the Exchange Act and will
comply with all other public information reporting requirements of the SEC from
time to time in effect. In addition, the Company shall file such reports and
information, and shall make available to the public and to each Holder such
information, as shall be necessary to permit such Holder to offer and sell
shares of Common Stock held by such Holder pursuant to the provisions of Rule
144 promulgated under the Securities Act. The Company will also cooperate with
each Holder in supplying such information as may be necessary for such Holder to
complete and file any information reporting forms presently or hereafter
required by the SEC as a condition to the availability of an exemption from the
registration provisions of the Securities Act in connection with the sale of any
shares held by such Holder. The Company will furnish to each Holder, promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent or made available generally by the Company to
its stockholders, and copies of all regular and periodic reports filed by the
Company with any securities exchange or with the SEC.
2. INDEMNIFICATION; CONTRIBUTION; EXPENSES.
2.1 INDEMNIFICATION; CONTRIBUTION.
(A) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify, to the fullest extent permitted by law, each Holder, its
officers, directors, partners and agents, if any, and each Person, if
any, who controls such Holder within the meaning of section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses, joint or several, in each
case, under the Securities Act or common law or otherwise, resulting
from any violation by the Company of the provisions of the Securities
Act or any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or amendment thereto or
prospectus (and as amended or supplemented if amended or supplemented)
or any preliminary prospectus provided for under Section 1 or caused by
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 any prospectus, in light of the circumstances
under which they were made) not misleading, except to the extent that
such losses, claims, damages, liabilities (or proceedings in respect
thereof) or expenses are caused by any untrue
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statement or alleged untrue statement contained in or by any omission
or alleged omission from information concerning any Holder, or
concerning such Holder's intended method of distribution, furnished in
writing to the Company by such Holder expressly for use therein, or
from any information provided by an underwriter selected by the Holders
or any of them. If the offering pursuant to any registration statement
provided for under Section is made through underwriters, no action or
failure to act on the part of such underwriters shall affect the
obligations of the Company to indemnify any Holder or any other Person
pursuant to the preceding sentence. If the offering pursuant to any
registration statement provided for under Section is made through
underwriters, the Company agrees, to the extent required by such
underwriters, to enter into an underwriting or other agreement
providing for indemnity of such underwriters, their officers,
directors, partners and agents, if any, and each Person, if any, who
controls such underwriters within the meaning of section 15 of the
Securities Act to the same extent as hereinbefore provided with respect
to the indemnification of the Holders; PROVIDED that the Company shall
not be required to indemnify any such underwriter, or any officer or
director of such underwriter or any Person who controls such
underwriter within the meaning of section 15 of the Securities Act, to
the extent that the loss, claim, damage, liability (or proceedings in
respect thereof) or expense for which indemnification is claimed
results from such underwriter's failure to send or give a copy of an
amended or supplemented final prospectus to the Person asserting an
untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such amended or supplemented final prospectus prior to
such written confirmation and the underwriter was provided with such
amended or supplemented final prospectus.
(B) INDEMNIFICATION BY THE HOLDERS. In connection with any
registration statement in which a Holder is participating, each such
Holder, severally and not jointly, shall indemnify, to the fullest
extent permitted by law, the Company, each underwriter (if the
underwriter so requires) and their respective officers, directors,
partners and agents, if any, and each Person, if any, who controls the
Company or such underwriter within the meaning of section 15 of the
Securities Act, against any losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses resulting from any untrue
statement or alleged untrue statement of a material fact or any
omission or alleged omission of a material fact required to be stated
in the registration statement or prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or necessary to make the
statements therein (in the case of any prospectus, in light of the
circumstances under which they were made) not misleading, but only to
the extent that such untrue statement is contained in or such omission
is from information so concerning a Holder, or such Holder's intended
method of distribution, furnished in writing by such Holder expressly
for use therein; PROVIDED, HOWEVER, that such Holder's obligations
hereunder shall be limited to an amount equal to the proceeds to such
Holder of the Registrable Securities sold pursuant to such registration
statement.
2.2 INDEMNIFICATION FOR CONTROLLING PERSON LIABILITY. In addition to
the indemnification provided for in Section , the Company shall indemnify, to
the fullest extent permitted by law, each Holder, its officers, directors,
partners and agents, if any, and each Person, if any, who controls such Holder
within the meaning of section 15 of the Securities Act,
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against all losses, claims, damages, liabilities (or proceedings in respect
thereof) and expenses, joint or several, in each case, under the Securities Act
or common law or otherwise, resulting from:
(a) any violation by the Company of the provisions of the
Securities Act;
(b) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or amendment
thereto or prospectus (and as amended or supplemented if amended or
supplemented) or any preliminary prospectus or caused by 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 any prospectus, in light of the circumstances under which they were
made) not misleading, whether or not, in each such case, the
registration statement or amendment thereto or prospectus (or amendment
or supplement thereto) or preliminary prospectus related or relates to
any offering or sale of Registrable Securities by a Holder; and
(c) any other untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material
fact necessary to make the statements in any document issued or
delivered to any purchaser or potential purchaser or filed with the SEC
pursuant to Section 13 or Section 15(d) of the Exchange Act (in light
of the circumstances under which they were made) not misleading, in
each case, in connection with any offering or sale of Securities of the
Company by any Person, whether or not such Securities offered or sold
are or were registered or required to be registered under the
Securities Act;
in each such case, to the extent that such losses, claims, damages, liabilities
(or proceedings in respect thereof) and expenses, joint or several, are alleged
to result from or exist by virtue of the fact that any Holder controls or is
alleged to control (within the meaning of section 15 of the Securities Act or
section 20 of the Exchange Act) the Company or any Subsidiary or Affiliate,
whether such claim or allegation arises under section 15 of the Securities Act
or section 20 of the Exchange Act or otherwise; PROVIDED, HOWEVER, that such
indemnification shall not extend to losses, claims, damages, liabilities (or
proceedings in respect thereof) or expenses caused by any untrue statement or
alleged untrue statement contained in or by any omission or alleged omission
from information furnished in writing to the Company by such Holder expressly
for use therein, or from any such information provided by an underwriter
selected by the Holders or any of them.
2.3 CONTROL OF DEFENSE. Any Person entitled to indemnification under
the provisions of this Section shall give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties exists in respect of such claim, permit
such indemnifying party to assume the defense of such claim, with counsel
reasonably satisfactory to the indemnified party; and if such defense is so
assumed, such indemnifying party shall not enter into any settlement without the
consent of the indemnified party (which consent shall not be unreasonably
withheld) if such settlement attributes liability to the indemnified party and
such indemnifying party shall not be subject to any liability for any settlement
made without its consent (which shall not be unreasonably withheld); and any
underwriting agreement entered into with respect to any registration statement
provided for under
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Section shall so provide if the underwriter or underwriters so require. In the
event an indemnifying party shall not be entitled, or elects not, to assume the
defense of a claim, such indemnifying party shall not be obligated to pay the
fees and expenses of more than one counsel or firm of counsel for all parties
indemnified by such indemnifying party in respect of such claim, unless in the
reasonable judgment of any such indemnified party a conflict of interest exists
between such indemnified party and any other of such indemnified parties in
respect to such claim.
2.4 CONTRIBUTION. If for any reason any indemnity contemplated by this
Section is unavailable, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses:
(a) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other; or
(b) if the allocation provided by clause (a) above is not
permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable
considerations.
Notwithstanding the foregoing, no Holder shall be required to contribute any
amount in excess of the amount such Holder would have been required to pay to an
indemnified party if the indemnity under Section (b) was available. 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. The obligation of any Person to
make such contribution shall be several and not joint.
2.5 ADVANCEMENT OF EXPENSES. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of this
Section 2 to or for the account of the indemnified party from time to time
promptly upon receipt of bills or invoices relating thereto or when otherwise
due or payable. Without limiting the generality of the foregoing, each
indemnifying party, as an interim measure during the pendency of any claim,
action, investigation, inquiry or proceeding arising out of or based upon any
matter or subject for which indemnity (or contribution in lieu thereof) would be
available to any indemnified party under any provision of this Section , it will
promptly reimburse each indemnified party, as often as invoiced therefor (but in
no event more often than monthly), for all reasonable legal or other expenses
incurred in connection with the investigation or defense of any such claim,
action, investigation, inquiry or proceeding, notwithstanding the absence of any
judicial determination as to the propriety or enforceability of the indemnifying
party's obligation to reimburse the indemnified party for such expenses and
notwithstanding the possibility that the obligations to pay such expenses might
later have been held to be improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement is held to be improper, the
indemnified party agrees to promptly return the amount so advanced to the
indemnifying party, together with interest, compounded monthly, at the prime
rate (or other commercial lending rate for borrowers of the highest credit
standing) listed from time to time in The Wall Street Journal which represents
the base rate on corporate loans posted by a substantial majority of the
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nation's thirty (30) largest banks. Any such interim reimbursement payments
which are not made to the indemnified party within thirty (30) days of a request
therefor shall bear interest at such prime rate from the date of such request to
the extent such reimbursement payments are ultimately determined to be proper
obligations of the indemnifying party. To the extent required by any underwriter
in connection with the execution of any underwriting agreement pursuant to which
the Holders shall be selling any shares of Common Stock, the Company shall agree
to advancement of the expenses of such underwriter to at least the same extent
as provided in this Section .
2.6 SURVIVAL. The indemnity and contribution agreements contained in
this Section shall remain in full force and effect regardless of any
investigation made by or on behalf of a participating Holder of Registrable
Securities, its officers, directors, agents or any Person, if any, who controls
such Holder as aforesaid, and shall survive the transfer of such Securities by
such Holder.
3. TERMINATION.
3.1 TERMINATION WITH RESPECT TO SHARES SOLD IN A PUBLIC OFFERING. The
provisions of Section shall terminate immediately as to any Securities when they
shall cease to be Registrable Securities (but shall remain in force with respect
to any remaining Registrable Securities).
3.2 TERMINATION UPON ABILITY TO FREELY RESELL. The provisions of
Section shall terminate immediately in their entirety with respect to any Holder
(and, with respect to any effective Shelf Registration, the registration
statement may be terminated and all shares of Common Stock held by such Holder
registered thereunder and remaining unsold may be deregistered) if either:
(a) such Holder has notified the Company in writing that all
remaining Registrable Securities may be freely resold by such Holder
without registration and without restriction or limitation (such as the
volume limitations, manner of sale requirements or current public
information requirements applicable under Rule 144 under the Securities
Act) under the Securities Act; or
(b) both:
(i) the aggregate number of shares of Common Stock
owned or held by such Holder, together with the aggregate
number of shares of Common Stock issuable to such Holder upon
the exercise of any rights, warrants or options held by such
Holder, shall equal less than ten percent (10%) of the number
of shares of Common Stock then outstanding, together with the
aggregate number of shares of Common Stock issuable to such
Holder upon the exercise of any rights, warrants or options
held by such Holder (but not any other Holder); and
(ii) the Company has delivered to such Holder an
opinion of Latham & Watkins or Parker, Poe, Adams & Bernstein
L.L.P. or other nationally recognized securities counsel
reasonably acceptable to such Holder that all remaining
Registrable Securities may be freely resold by such Holder
without registration and
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without restriction or limitation (such as the volume
limitations, manner of sale requirements or current public
information requirements applicable under Rule 144 under the
Securities Act) under the Securities Act.
4. DEFINED TERMS.
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
ACCOUNT -- means, with respect to a Holder who has been engaged to
provide investment management services, each Person on behalf of whom such
Holder provides such services.
AFFILIATE -- means, at any time, a Person (other than a Subsidiary or a
Holder):
(a) that directly or indirectly through one or more inter-
mediaries controls, or is controlled by, or is under common control
with, the Company;
(b) that beneficially owns or holds ten percent (10%) or more
of any class of the Voting Stock of the Company; or
(c) ten percent (10%) or more of the Voting Stock (or in the
case of a Person that is not a corporation, ten percent (10%) or more
of the equity interest) of which is beneficially owned or held by the
Company or a Subsidiary;
at such time.
As used in this definition,
CONTROL -- means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
AGREEMENT -- the introductory paragraph.
BUSINESS DAY -- means a day other than a Saturday, a Sunday or a day on
which banks in the State of New York are required or permitted by law (other
than a general banking moratorium or holiday for a period exceeding four (4)
consecutive days) to be closed.
COMMON STOCK -- means the Common Stock, par value $0.01 per share, of
the Company.
COMPANIES REGISTRATION SCHEME -- means an amendment or amendment to the
Securities Act (whether by statutory amendment, amendment of the rules and
regulations thereunder or both), such as, without limitation, as proposed in the
Report of the Advisory Committee on the Capital Formation and Regulatory
Processes of the Securities and Exchange Commission, dated July 24, 1996,
pursuant to which:
(a) issuers of Securities are permitted to register all
issuances of Securities on an integrated company registration state-
ment; and
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(b) under the provisions of such amendment, such registration,
under certain circumstances, would permit sales of the Registrable
Securities by the Holders to be covered by the Companies Registration
Scheme under circumstances in which the Registrable Securities could
not, under existing law, be freely resold without registration.
COMPANY -- the introductory paragraph.
EFFECTIVE DATE -- means January 7, 1998.
EXCHANGE ACT -- means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
HOLDERS -- the introductory paragraph.
INCIDENTAL REGISTRATION -- Section (a).
INITIATING HOLDERS -- means, at any time, any Holder or Holders (other
than the Company or any Subsidiary or Affiliate thereof) of at least fifteen
percent (15%) or more (by number of shares) of the Registrable Securities at
such time (excluding any Registrable Securities held directly or indirectly by
the Company or any Subsidiary or Affiliate thereof).
MATERIAL EVENT NOTICE -- Section .
NOTICE OF INTENT -- Section .
NASD -- means the National Association of Securities Dealers, Inc.
NASDAQ -- means the NASDAQ Stock Market, Inc., a subsidiary of the
NASD.
NASDAQ NATIONAL MARKET -- has the meaning ascribed thereto in Rule
4200(r) of the NASDAQ.
PERSON -- means an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, or a government or agency
or political subdivision thereof.
PLAN -- means the Debtors' Joint Plan of Reorganization, dated as of
July 11, 1997 (amended November 7, 1997) of Flagstar Companies, Inc. and
Flagstar Corporation (as predecessors to the Company), as confirmed by the order
of the United States Bankruptcy Court for the District of South Carolina entered
November 12, 1997.
PROPERTY -- means any and all interests in any kind of property or
asset whatsoever, whether real, personal or mixed and whether tangible or
intangible.
PUBLIC OFFERING -- shall mean any sale of shares of Common Stock in a
transaction either registered under, or requiring registration under, section 5
of the Securities Act.
REGISTRABLE SECURITIES -- means, at any time, all shares of Common
Stock issued to any Holder under the Plan.
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As to any particular Registrable Securities once issued, such
Securities shall cease to be Registrable Securities:
(i) when 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) when they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities
Act;
(iii) when they shall have been otherwise transferred and
subsequent disposition of them shall not require registration or
qualification under the Securities Act or any similar state law then in
force;
(iv) when they shall have ceased to be outstanding; or
(v) with respect to Registrable Securities attributable to an
Account, when the investment advisory services provided by the Holder
of such Registrable Securities are terminated by such Account, or by
any statutory, regulatory or bona fide business requirement or
condition.
REGISTRATION -- means the Shelf Registration, each Required
Registration and each Incidental Registration.
REGISTRATION EXPENSES -- means all expenses incident to the Company's
performance of or compliance with Section 1.1 through Section , inclusive,
including, without limitation:
(a) all registration and filing fees;
(b) fees and expenses of compliance with securities or blue
sky laws, to the extent required;
(c) expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with Depositary Trust Com-
pany;
(d) messenger and delivery expenses;
(e) internal Company expenses (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties);
(f) fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any
management review, cold comfort letters or any special audits required
by or incident to such performance and compliance);
(g) securities acts liability insurance (if the Company elects
to obtain such insurance);
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(h) the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration;
(i) fees and expenses of other Persons retained by the Com-
pany; and
(j) fees and expenses of counsel (including local counsel) for
Holders of Registrable Securities, selected by the Requisite Holders;
but not including any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities or fees and expenses of more than one
counsel representing the Holders or any other selling expenses, discounts or
commissions incurred in connection with the sale of Registrable Securities.
REQUIRED HOLDERS -- means, at any time, any Holder or Holders (other
than the Company or any Affiliate or Subsidiary) holding more than fifty percent
(50%) of the shares of Common Stock held by the Holders at such time (excluding
any shares held directly or indirectly by the Company or any Subsidiary or
Affiliate).
REQUIRED REGISTRATION -- Section (a).
REQUISITE HOLDERS -- means, with respect to any registration or
proposed registration (or, in the case of the Shelf Registration, any offering
under the Shelf Registration) of Registrable Securities pursuant to Section ,
any Holder or Holders (other than the Company or any Affiliate or Subsidiary)
holding more than fifty percent (50%) of the shares of Registrable Securities
(excluding any shares of Registrable Securities directly or indirectly held by
the Company or any Affiliate or Subsidiary) to be so registered.
SEC -- means, at any time, the Securities and Exchange Commission or
any other federal agency at such time administering the Securities Act.
SECURITIES ACT -- means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
SECURITY -- means "security" as defined by section 2(1) of the
Securities Act.
SHELF EFFECTIVE DATE-- means the date which is seventy-five (75) days
after the Shelf Filing Date.
SHELF EFFECTIVE PERIOD -- Section .
SHELF FILING DATE -- means the date which is thirty (30) days after the
Effective Date.
SHELF REGISTRATION -- Section .
SUBSIDIARY -- means any corporation in which the Company or one or more
Subsidiaries owns sufficient voting securities to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such corporation.
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VOTING STOCK -- means, with respect to any corporation, any shares of
stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
5. MISCELLANEOUS.
5.1 NOTICES. Notices or demands authorized by this Agreement to be
given or made to the parties hereto shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed as follows, or telexed,
telecopied, or delivered by overnight or other courier to the following
addresses:
(a) if to the Company, at:
Advantica Restaurant Group, Inc.
203 East Main Street
Spartanburg, SC 29319
Attention: Rhonda J. Parish, General Counsel
Fax: 864-597-8327
with a copy to:
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza
Charlotte, NC 28244
Attention: Gary C. Ivey
Fax: 704-334-4706
or such other addresses as the Company shall designate to each Holder in
writing;
(b) if to any Holder named on Annex 1, at the address or
addresses set forth in Annex 1 hereto for such Holder or, if a
successor or assign of such Holder, then at the address provided to the
Company by such successor or assign or such other address or addresses
as such successor or assign shall designate to the Company in writing.
The Company, upon the written request of any Holder, will promptly supply such
Holder with a list of the names and addresses of each party hereto at such time.
5.2 AMENDMENTS AND WAIVERS. The provisions hereof may be amended,
modified or supplemented only by a writing duly executed by or on behalf of the
Required Holders and the Company; PROVIDED, HOWEVER, that compliance by the
Company with the provisions of Section with respect to any particular
registration, may be waived by the Requisite Holders.
5.3 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE INTERNAL LAW OF THE STATE OF NEW YORK.
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5.4 JURISDICTION; JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. NONE OF THE PARTIES HERETO SHALL SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION PROCEDURE BASED
UPON OR ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT AND EACH OF THE
PARTIES HERETO HEREBY WAIVES ANY AND ALL RIGHT TO ANY SUCH JURY TRIAL AND ANY
RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY SUCH PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION .
5.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5.6 DESCRIPTIVE HEADINGS; SECTIONS. Descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
References to a "Section" in this Agreement are references to the indicated
section of this Agreement.
5.7 SEVERABILITY. The fact that any given provision of this Agreement
is found to be unenforceable, void or voidable under the laws of any
jurisdiction shall not effect the validity of the remaining provisions of this
Agreement in such jurisdiction, and shall not effect the enforceability of the
entire Agreement under the laws of any other jurisdiction.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY; NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered, all as of the date and year first above written.
ADVANTICA RESTAURANT GROUP, INC.
By: /s/ Ronald B. Hutchison
---------------------------------------------
Name: Ronald B. Hutchison
Title: Vice President and Treasurer
LOOMIS, SAYLES & COMPANY, L.P.
By Loomis, Sayles & Company, Inc.,
General Partner
By: /s/ Frederick A. Vyn
---------------------------------------------
Name: Frederick A. Vyn
Title: Vice President
<PAGE>
ANNEX 1
NAMES AND ADDRESSES OF HOLDERS
Loomis Sayles & Company, L.P.
One Financial Center
Boston, MA 02111
Attn: Frederick A. Vyn
Fax: 617-261-1493
with a copy to:
Hebb & Gitlin
One State Street
Hartford, Connecticut 06103
Attn: Gary S. Hammersmith
Fax: 860-278-8968
Annex 1-1
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