Exhibit 10.3
RUTH U. FERTEL,
INC.
REGISTRATION
AGREEMENT
THIS AGREEMENT is made as of
September 17, 1999, among Ruth U. Fertel, Inc., a Louisiana
corporation (the “ Company ”), Madison Dearborn
Capital Partners III, L.P., a Delaware limited partnership (“
MDCP ”), Madison Dearborn Special Equity III, L.P., a
Delaware limited partnership (“ MDSE ”), Special
Advisors Fund I, LLC, a Delaware limited liability company (“
SAF ”). First Union Investors, Inc., a North Carolina
corporation (“ First Union ”), GS Mezzanine
Partners, L.P., a Delaware limited partnership (“ GS
Mezzanine ”) and GS Mezzanine Partners Offshore, L.P., an
exempted limited partnership organized under the laws of the Cayman
Islands (“ GS Mezzanine Offshore ”, and together
with GS Mezzanine, “ GS ”) and the investors
listed on the signature page hereto (the “ Investors
”).
Pursuant to the terms of that
certain Transaction and Merger Agreement, dated as of July 16,
1999, by and among the Company, RUF Merger Corp., a Louisiana
corporation (“ Merger Corp. ”), MDCP, MDSE and
SAF (the “ Merger Agreement ”) (i) MDCP, MDSE
and SAF have agreed to purchase shares of Series B Preferred Stock
and Class A Common Stock of the Company, and (ii) the Investors
will be issued shares of Series B Preferred Stock and Class A
Common Stock of the Company. In order to induce MDCP, MDSE, SAF and
Merger Corp. to enter into the Merger Agreement, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the Closing under the Merger Agreement. Unless
otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in the Merger
Agreement.
The Company and First Union are
parties to that certain Securities Purchase Agreement, of even date
herewith (the “ Investment Agreement ”). In
order to induce First Union to enter into the Investment Agreement,
the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is
a condition to the closing under the Investment
Agreement.
The Company, GS Mezzanine, GS
Mezzanine Offshore and the Guarantors listed in the signature page
thereof are parties to that certain Purchase Agreement, of even
date herewith (the “ Purchase Agreement ”). In
order to induce GS to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement
The parties hereto agree as
follows:
1. Piggyback Registrations
.
(a) Right to Piggyback .
Whenever the Company proposes to register any of its Common Stock
or Securities convertible into or exchangeable for Common Stock
under the
Securities Act, on a form which may be used for
an offering for cash of shares of the Company held by third parties
and which is not a registration solely to implement an employee
benefit plan or a transaction to which Rule 145 or any other
similar rule of the Securities and Exchange Commission (the “
Commission ”) is applicable (a “ Piggyback
Registration ”), the Company shall give prompt written
notice to all holders of Registrable Securities of its intention to
effect such a registration and shall include in such registration
(and any related qualification under blue sky laws or in compliance
with other registration requirements) and in any underwriting of
such sale of securities, all Registrable Securities with respect to
which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company’s
notice.
(b) Piggyback Expenses . The
Registration Expenses of the holders of Registrable Securities
shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary
Registrations . If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion
the number of Securities requested to be included in such
registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by each such
holder, and (iii) third, other Securities requested to be included
in such registration; provided , that the Company shall not
exclude from the registration more than the amount of Registrable
Securities which, in the reasonable opinion of the managing
underwriters, must be excluded because of the marketability factors
affecting the offering.
(d) Priority on Secondary
Registrations . If a Piggyback Registration is an underwritten
secondary registration on behalf of holders of the Company’s
Securities, and the managing underwriters advise the Company in
writing that in their opinion the number of Securities requested to
be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i)
first, the Securities requested to be included therein by the
holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among such
holders on the basis of the number of shares owned by each such
holder, and (ii) second, other Securities requested to be included
in such registration; provided that the Company shall not
exclude from the registration more than the amount of Registrable
Securities which, in the reasonable opinion of the managing
underwriters, must be excluded because of the marketability factors
affecting the offering.
(e) Withdrawal Rights . If
any holder of Registrable Securities disapproves of the terms of
the underwriting of a registration under paragraphs 1(c) or 1(d)
above, the holder may elect to withdraw from such registration by
written notice to the Company and the managing underwriters, which
notice, to be effective, must be received by the Company at least
five (5) business days before the anticipated effective date of the
applicable registration statement. The Registrable Securities or
other securities so withdrawn from such underwritten offering shall
also
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be withdrawn from such registration;
provided that if by the withdrawal of such Registrable
Securities, a greater number of Registrable Securities held by
other holders of Registrable Securities may be included in such
registration (up to the maximum of any limitation imposed by the
managing underwriters), then the Company shall include in the
registration in place of such withdrawn Registrable Securities such
additional Registrable Securities held by other holders whose
Registrable Securities were excluded pursuant to limitations by the
managing underwriters pursuant to paragraphs 1(c) and 1(d) above,
in the same proportion (among the group of such holders of
previously excluded Registrable Securities) as such Registrable
Securities were excluded pursuant to such managing
underwriters’ limitation (with no more Registrable Securities
being so included than were withdrawn). Any securities excluded or
withdrawn from such underwriting shall also be withdrawn from such
registration and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the
effective date of such registration, or such shorter period of time
as the underwriters may require. The Company may at any time
withdraw or abandon any registration statement which triggers the
provisions of the paragraph 1(a) without any liability to any
holder.
(f) Other Registrations . If
the Company has previously filed a registration statement with
respect to Registrable Securities pursuant to this paragraph 1, and
if such previous registration has not been withdrawn or abandoned,
the Company shall not file or cause to be effected any other
registration of any of its Securities under the Securities Act
(except on Form S-8 or any successor form), whether on its own
behalf or at the request of any holder or holders of such
Securities, until a period of at least 180 days has elapsed from
the effective date of such previous registration.
2. Demand Registration
.
(a) Demand for Registration .
Following One Hundred Eighty (180) days after the initial public
offering of the Securities of the Company, upon the written request
of First Union Holders and GS Holders holding more than 40% of the
Registrable Securities held by all First Union Holders and GS
Holders (the “ Initiating Investors ”) that the
Company effect one registration under the Securities Act of all or
any part of such Initiating Investors’ Registrable Securities
and specifying the intended method of distribution thereof (a
“ Demand Registration ”), the Company will
promptly give written notice of such requested registration to all
other holders (if any) of Registrable Securities and thereupon the
Company will use its commercially reasonable efforts to effect the
registration under the Securities Act of:
(i) the Registrable Securities which
the Company has been so requested to register by the Initiating
Investors, and
(ii) all other Registrable
Securities which the Company has been requested to register by the
holders thereof by written request given to the Company within ten
business days after the giving of such written notice by the
Company (which request shall specify the intended method of
disposition of such Registrable Securities), all to the extent
required to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to
be registered; provided that the Company will not be
required to effect
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any registration under this
paragraph 2(a) (A) prior to the earlier of (i) 180 days after the
consummation of an underwritten public offering of the
Company’s Securities or (ii) ninety (90) days following the
effective date of any other registration statement initiated by the
Company, (B) unless the aggregate offering value of the Registrable
Securities requested to be included in such registration is at
least $25,000,000 in the case of a registration on form S-1 or at
least $10,000,000 in the case of a registration on form S-3 and (C)
unless MDCP has received proceeds from the sale, repurchase,
redemption and/or repayment of the Common Stock and Series B
Preferred Stock issued to MDCP as of the date hereof in one or more
transactions equal to at least MDCP’s original cost of such
Securities. The Company will not be required to effect more than
one registration pursuant to this paragraph 2.
(b) Expenses . The
Registration Expenses in connection with the registration requested
pursuant to this paragraph 2 shall be paid by the Company;
provided that if the Initiating Investors elect to pay the
Registration Expenses pursuant to the proviso in paragraph 2(c)
below, then the Initiating Investors shall pay to the Company,
promptly following the decision not to have the registration become
effective, the Registration Expenses incurred by the
Company.
(c) Effective Registration
Statement . A registration requested pursuant to this paragraph
2 shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has become effective;
provided that a registration which does not become effective
after the Company has filed a registration statement with respect
thereto solely by reason of a refusal by the Initiating Investors
to proceed (other than refusal to proceed based upon any material
adverse change relating to the Company’s business, which
change occurred after the date of the filing of the registration
statement) shall be deemed to have been effected by the Company at
the request of such Initiating Investor unless such Initiating
Investors shall have elected to pay all Registration Expenses in
connection with such registration, (ii) if after it has become
effective, such registration is interfered with by any stop order,
injunction or other order to requirement of the Securities Exchange
Commission or other governmental agency or court for any reason, or
(iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with
such registration (other than action required to be taken by the
holders of the Registrable Securities included in such
registration) are not satisfied or waived.
(d) Priority in Demand
Registration . If a requested registration pursuant to this
paragraph 2 involves an underwritten offering, and the managing
underwriters advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration) that, in
their opinion, the number of securities requested to be included in
such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the
offering, the Company shall include in such registration to the
extent of the number which the Company is so advised can be sold in
such offering without any significant adverse effect on price, (i)
first, the Registrable Securities requested to be included in the
registration by the First Union Holders and GS Holders up to but
not exceeding 70% of the number of shares that are available to be
sold in the opinion of the underwriters, (ii) second, the
Registrable Securities requested to be included in the
registration, pro rata among the Other Holders on the basis of the
number of shares owned by each such holder, and (iii) third, if
all
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Registrable Securities requested to be included
in such registration are to be included, Securities of the Company
proposed to be sold by the Company for its own account in such
registration.
(e) Restrictions on Demand
Registrations .
(i) The Company may postpone for up
to 180 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company determines that
such Demand Registration would reasonably be expected to have a
material adverse effect on any proposal or plan by the Company or
any of its Subsidiaries (including, without limitation, any
acquisition of assets (other than in the ordinary course of
business), any merger, consolidation, tender offer, reorganization
or similar transaction) or would require the disclosure of any
material non-public information which the Company reasonably
believes disclosure of which would have an adverse effect on the
Company; provided that in such event, the holders of
Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request at any time
prior to the effective date of the registration statement and, if
such request is withdrawn, such Demand Registration shall not count
as one of the permitted Demand Registrations hereunder and the
Company shall pay all Registration Expenses in connection with such
registration.
(ii) Notwithstanding anything to the
contrary contained in this paragraph 2, if certain First Union
Holders and GS Holders request a Demand Registration, the Company
may, within 20 days after receiving written notice from such First
Union Holders and GS Holders of such requested registration, elect
to proceed with a primary registration of Securities to be issued
and sold by the Company pursuant to the provisions of paragraph 1
as a Piggy-Back Registration instead of a Demand Registration as
requested by such First Union Holders and GS Holders so long as the
Company provides written notice of such election to the First Union
Holders, GS Holders and the Other Holders, and the Company shall
include Registrable Securities in such registration as provided
under paragraph 1 (except that notwithstanding the provisions of
paragraph 1(c), if the managing underwriters advise the Company in
writing that, in their opinion, the number of securities requested
to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration to
the extent of the number which the Company is so advised can be
sold in such offering without any significant adverse effect on
price, (i) first, the number of securities the Company proposes to
sell, (ii) second, the Registrable Securities requested to be
included in the registration by the First Union Holders and GS
Holders up to but not exceeding 60% of the remaining number of
shares that are available to be sold in the opinion of the
underwriters, (iii) third, the Registrable Securities requested to
be included in the registration, pro rata among the Other Holders
on the basis of the number of shares owned by each such holder and
(iv) fourth, other Securities requested to be included in such
registration); provided that in such event, the holders of
Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request at any time
prior to the effective date of the registration statement and, if
such request is withdrawn, such Demand Registration shall not count
as the permitted Demand Registrations hereunder and the Company
shall pay all Registration Expenses in connection with such
registration.
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(f) Additional Shares . To
the extent permitted by paragraph 2(d), the Company may include in
any registration requested under this paragraph 2 any number of
shares proposed to be sold by the Company for its own
account.
(g) Withdrawal Rights . If
any holder of Registrable Securities disapproves of the terms of
the underwriting of a registration under this paragraph, the holder
may elect to withdraw from such registration by written notice to
the Company and the managing underwriters, which notice, to be
effective, must be received by the Company at least five business
days before the anticipated effective date of the applicable
registration statement. The Registrable Securities or other
securities so withdrawn from such underwritten offering shall also
be withdrawn from such registration; provided , that if by
the withdrawal of such Registrable Securities, a greater number of
Registrable Securities held by other holders of Registrable
Securities may be included in such registration (up to the maximum
of any limitation imposed by the managing underwriters) then the
Company shall include in the registration in place of such
withdrawn Registrable Securities such additional Registrable
Securities held by other holders whose Registrable Securities were
excluded pursuant to limitations by the managing underwriters
pursuant to paragraph 2(d) above, in the same proportion (among the
group of such holders of previously excluded Registrable
Securities) as such Registrable Securities were excluded pursuant
to such managing underwriters’ limitation (with no more
Registrable Securities being so included than were withdrawn). The
Company may at any time withdraw or abandon any registration
statement which triggers the provisions of this paragraph 2(g)
without any liability to any holder. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the
effective date of such registration, or such shorter period of time
as the underwriters may require.
3. Holdback Agreements . To
the extent requested by the Company or the managing underwriters of
a registration, each holder of Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to
Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period
beginning on the effective date of any underwritten public offering
of the Company’s equity securities registered under the
Securities Act in which Registrable Securities are included (except
as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree.
4. Registration Procedures .
Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its commercially reasonable
efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company shall as expeditiously as
possible:
(a) prepare and file with the
Securities and Exchange Commission a registration statement, and
amendments and supplements thereto and related prospectuses as may
be necessary to comply with the federal securities laws, with
respect to such Registrable Securities and use its commercially
reasonable efforts to cause such registration statement to become
effective (p
