Exhibit 10.4(a)
PURCHASE AGREEMENT
This purchase agreement (the "Agreement") is made and entered into as of
the 27th day of August, 1997 by and between Xxxxx X. Xxxx and Xxxx X. Xxxxxx
(each a "Seller" and collectively, the "Sellers"), and Boston Chicken, Inc., a
Delaware corporation (the "Purchaser" or "BCI").
Recitals
Progressive Food Concepts, Inc., a Delaware corporation formerly known as
HFMI Acquisition Corporation ("PFCI") was organized in January 1997. On January
31, 1997, each of the Sellers entered into a separate subscription agreement
with PFCI pursuant to which each of the Sellers subscribed for 6,500 shares of
common stock of PFCI (the "Subscription Agreements").
Each of the Sellers desires to sell to the Purchaser, and the Purchaser
desires to purchase from each of the Sellers, on the terms and conditions
hereinafter set forth, certain shares of common stock of PFCI. In addition,
each of the Sellers desires to sell and assign to the Purchaser, and the
Purchaser desires to purchase from each of the Sellers and assume, on the terms
and conditions hereinafter set forth, the remaining subscription rights and
obligations of the Sellers under the Subscription Agreements. Finally, in
consideration of the Purchaser's agreement to acquire from the Sellers shares of
common stock of PFCI and subscription rights and the Purchaser's other
agreements and representations made herein, each of the Sellers has agreed to
grant to the Purchaser an option to acquire the remaining shares of common stock
of PFCI not owned by such Seller.
Covenants
In consideration of the mutual representations, warranties and covenants
and subject to the conditions herein contained, the parties hereto agree as
follows:
1.0 Purchase and Sale of Shares
1.1 Each of the Sellers severally agrees to sell, transfer, assign
and deliver to the Purchaser at the Closing (as defined herein), and the
Purchaser agrees to purchase and accept from each of the Sellers, on the terms
and subject to the conditions set forth in this Agreement, 4,000 shares of
common stock of PFCI, for a total of 8,000 shares (the "Shares"), free and clear
of all liens, claims, charges, security interests, restrictions on transfer
(other than restrictions under federal and state securities laws), options,
warrants, voting trusts and any other encumbrances of any kind whatsoever
("Encumbrances").
1.2 As consideration for the Shares (the "Purchase Price"), the
Purchaser agrees, on the terms and subject to the conditions set forth in this
Agreement, to pay to or for the account of each Seller (i) $1,000,000 in cash,
and (ii) a promissory note of BCI in the principal amount of $3,181,480 dated as
of the Closing Date, in the form attached as Exhibit A hereto (each a "note" and
collectively, the "Notes").
2.0 Purchase and Sale of Subscription Rights
2.1 Each of the Sellers severally agrees to sell, transfer, assign
and deliver to the Purchaser at the Closing (as defined herein), and the
Purchaser agrees to purchase and accept from each of the Sellers, on the terms
and subject to the conditions set forth in this Agreement, such Seller's right
to purchase shares of common stock of PFCI and all of such Seller's other rights
under the Subscription Agreement entered into by such Seller (the "Subscription
Rights"), free and clear of all Encumbrances.
2.2 As consideration for the Subscription Rights to be purchased from
each Seller, the Purchaser agrees, on the terms and conditions set forth in this
Agreement, to assume at the Closing all of the obligations of such Seller under
the Subscription Agreement entered into by such Seller.
3.0 Option of BCI to Purchase Additional Shares and Option of the
Sellers to sell Additional Shares
3.1 Each of the Sellers hereby grants to BCI an option to purchase
the 333.3335 shares of common stock of PFCI owned by him that are not being sold
to BCI pursuant to Section 1.1 hereof (the "Option Shares") for a per share
purchase price equal to the sum of (i) $1,000, plus (ii) an amount that is
equivalent to simple interest, computed at a per annum rate of 8%, on the sum of
$1,000 for the period from January 31, 1997 through the date of the closing of
the option exercise (the "Option Purchase Price").
3.2 Each of the Sellers shall have an option to sell the Option
Shares to BCI for the Option Purchase Price.
3.3 In the event that there shall occur at any time prior to the
closing of any option exercise hereunder any stock split, stock dividend,
reverse stock split, recapitalization, combination, exchange of shares, or other
similar event affecting the common stock of PFCI, then there shall be
substituted for the shares subject to the option the cash, securities or other
property to which the holder of such shares shall be entitled by reason thereof
and the per share purchase price shall be appropriately adjusted so that the
aggregate purchase price payable upon exercise of the option shall be unchanged.
3.4 The purchase price payable upon exercise of any option hereunder
shall be payable by the delivery of cash, or promissory notes in the form of
Exhibit A hereto, or any combination thereof, as determined by BCI in its sole
discretion.
3.5 The option granted by each Seller to BCI shall be exercisable by
BCI, in whole or in part from time to time, at any time from and after the date
hereof and on or before the Expiration Date (as hereinafter defined) by the
delivery by BCI to such Seller of written notice of exercise, which notice shall
specify the consideration that shall be payable upon exercise (as determined
under Section 3.4) and the date of the closing of the option exercise, which
shall be at least five business days after the date of the notice. The option of
each Seller to sell the Option Shares shall be exercisable by such Seller, in
whole or in part from time to time, at any time from and after the date hereof
and on or before the Expiration Date (as hereinafter defined) by the delivery by
the Seller to BCI of written notice of exercise, which notice shall specify the
date of the closing of the option exercise, which shall be at least five
business days after the date of the notice, except that no Seller may exercise
any option hereunder to the extent BCI's purchase of the Option Shares would
result in a violation by BCI of any of its covenants made in agreements
governing indebtedness or lease financing (a "Covenant Violation"). The closing
of any option exercise shall occur on the date so specified in the applicable
notice (or such other date as the parties may agree) or on such later date after
the termination or expiration of any required
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waiting period under the HSR Act (as hereinafter defined). At the closing, the
Seller shall deliver certificates evidencing the shares to be purchased by BCI,
together with stock powers duly executed in blank, and BCI shall deliver the
cash, and/or notes payable by BCI upon exercise. As used herein, the term
"Expiration Date" shall mean the first anniversary of the date hereof, except
that if any exercise of an option would result in a Covenant Violation, then BCI
shall give a notice to each of the Sellers promptly after the time when the
exercise of an option would no longer result in a Covenant Violation and the
Expiration Date shall be the 60th day after the giving of such notice.
3.6 In the event BCI determines that any filing is required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
in connection with any exercise of any option hereunder, the Seller agrees to
prepare and file with the Federal Trade Commission and the United States
Department of Justice within 10 business days from the date of notice from BCI
any notification required to be filed under the HSR Act or any rules or
regulations promulgated thereunder. BCI shall pay any filing fees required under
the HSR Act in connection with such filing. Any such filing shall be true and
accurate in all material respects and responsive to the requirements of the HSR
Act and any such rules and regulations. Each of the Sellers and BCI shall make
available to the other parties such information as may be required for the
preparation of any such notification or related reports.
3.7 To secure each Seller's obligation to deliver shares of common
stock of PFCI upon exercise by BCI of any option hereunder, each Seller is,
concurrently with the execution and delivery of this Agreement, delivering to
BCI certificates evidencing 333.3335 shares of common stock of PFCI owned by
such Seller, together with stock powers duly executed in blank by such Seller,
and such Seller agrees that BCI shall be entitled to retain possession thereof
for so long as BCI's option to purchase such shares remains exercisable. Each
Seller further irrevocably appoints BCI as its agent to deliver such
certificates and stock powers upon any exercise of the option.
4.0 Closing
4.1 The closing of the purchase and sale of the Shares and the
Subscription Rights shall take place at the offices of BCI in Golden, Colorado
at 10:00 A.M., local time, on August 26, 1997, or at such other place or on such
other date as may be mutually agreed by the Sellers and Purchaser. Throughout
this Agreement, such event is referred to as the "Closing" and such date and
time are referred to as the "Closing Date."
4.2 At the Closing:
4.2.1 The Sellers shall deliver to the Purchaser:
4.2.1.1 a copy of the amended and restated certificate of
incorporation of PFCI (the "Certificate of Incorporation"),
certified as of a date not more than ten business days prior to
the Closing Date by the Secretary of State of Delaware, and a
copy of the bylaws of PFCI (the "Bylaws"), certified as of the
Closing Date by the Secretary or Assistant Secretary of PFCI;
4.2.1.2 a certificate of good standing of PFCI, certified
as of a date not more than ten business days prior to the Closing
Date by the Secretary of State of Delaware;
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4.2.1.3 certificates evidencing the Shares, accompanied by
stock powers duly executed in blank;
4.2.1.4 one or more instruments of assignment satisfactory
to BCI, assigning the Subscription Rights to BCI;
4.2.1.5 the certificates evidencing shares of common stock
of PFCI, and the related stock powers, referred to in Section 3.5
hereof; and
4.2.1.6 a resolution of the Board of Directors of PFCI
authorizing PFCI to execute and deliver the consent specified in
Section 8.1.2 hereof, certified as of the Closing Date by the
Secretary or Assistant Secretary of PFCI.
4.2.2 The Purchaser shall deliver to the Sellers:
4.2.2.1 the cash portion of the Purchase Price, by wire
transfer of immediately available funds to accounts designated by
the respective Sellers;
4.2.2.2 the Notes;
4.2.2.3 one or more instruments of assumption satisfactory
to the Sellers, assuming the obligations of the Sellers under the
Subscription Agreements; and
4.2.2.4 a resolution of the Board of Directors of BCI
authorizing BCI to enter into this Agreement and to consummate
the transactions contemplated hereby.
5.0 Representations and Warranties of the Sellers
In order to induce the Purchaser to enter into this Agreement and to
purchase the Shares, each of the Sellers severally represents and warrants to
the Purchaser as follows:
5.1 This Agreement has been duly executed and delivered by such
Seller. This Agreement is a valid and legally binding obligation of such Seller,
enforceable in accordance with its terms.
5.2 The authorized capital stock of PFCI consists of 100,000 shares
of common stock, $.01 par value, 9,379.042 shares of which are issued and
outstanding and an additional 4,333.333 shares of which will be issued to the
Sellers in the aggregate upon payment by or on behalf of the Sellers of the
aggregate amount of $4,333,333 remaining due under the Subscription Agreements
(the "Balance"), and 50,000 shares of preferred stock, $.01 par value, none of
which are issued and outstanding. Except for (i) the rights set forth in the
Subscription Agreements, (ii) the rights set forth in the Secured Loan Agreement
(and the notes related thereto) between PFCI and BCI (the "Secured Loan
Agreement") and (iii) the rights set forth in the Acquisition Agreement dated
January 31, 1997 between Harry's Farmers Market, Inc. and PFCI, to the knowledge
of the Sellers, there are no outstanding warrants, options or rights of any kind
to acquire from PFCI or such Seller any stock or securities of any kind, and
there are no pre-
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emptive rights with respect to the issuance or sale of shares of PFCI. To the
knowledge of the Sellers, PFCI has no obligation to acquire any of its issued
and outstanding stock or any other security issued by it from any holder
thereof. All of the Shares owned by such Seller will be fully paid and
nonassessable and delivery of the Shares and Subscription Rights by such Seller
will vest title to all of such Shares and Subscription Rights in the Purchaser,
free and clear of all Encumbrances (other than restrictions under federal and
state securities laws and Encumbrances created by the Purchaser). All of the
Option Shares owned by such Seller are fully paid and nonassessable and delivery
of the Option Shares by such Seller will vest title to all of the Option Shares
in the Purchaser, free and clear of all Encumbrances (other than restrictions
under federal and state securities laws and Encumbrances created by the
Purchaser).
5.3 Neither the execution, delivery and performance of this Agreement
by such Seller, nor the consummation by it of the transactions contemplated
hereby, will, to the knowledge of such Seller, violate any applicable law or
regulation, or any order, writ, injunction, or decree of the United States or
any court, arbitrator, or governmental or regulatory official, body,
subdivision, instrumentality, agency or authority, whether federal, state or
local ("Governmental Body"), or will conflict or be inconsistent with or result
in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, any agreement to which such Seller is a party or by
which he is bound. To the knowledge of the Seller, no permit, consent,
approval, or authorization of, or declaration to or filing with, any
Governmental Body or any other person, except for the consent of PFCI described
in Section 8.1.1, is necessary for the execution and delivery by such Seller of
this Agreement or for the consummation by such Seller of the transactions
contemplated hereby.
5.4 Such Seller has no obligation to pay any fees or commissions to
any investment banker, broker, finder or agent with respect to the transactions
contemplated by this Agreement.
6.0 Representations and Warranties of the Purchaser
In order to induce each of the Sellers to enter into this Agreement
and to sell the Shares, the Purchaser represents and warrants as follows:
6.1 The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the power to execute, deliver and perform its obligations under the terms of
this Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement.
6.2 This Agreement has been duly executed and delivered by the
Purchaser. This Agreement is a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms. Neither the execution and
delivery of this by the Purchaser nor the consummation by it of the transactions
contemplated hereby, will, to the knowledge of the Purchaser, violate any
applicable law or regulation, or any order, writ, injunction, or decree of any
Governmental Body, or will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, any agreement to which the Purchaser is a party or
by which it is bound. To the knowledge of the Purchaser, no permit, consent,
approval or authorization of, or declaration to or filing with, any Governmental
Body or any other person is required in connection with the execution and
delivery of this Agreement by the Purchaser and the consummation by it of the
transactions contemplated hereby.
6.3 The Purchaser has no obligation to pay any fees or commissions to
any investment banker, broker, finder or agent with respect to the transactions
contemplated by this Agreement.
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6.4 The Purchaser understands that the Shares have not been
registered under the 1933 Act and, therefore, cannot be sold or transferred
unless either they are subsequently registered under such Act (as well as under
any applicable state securities laws) or an exemption from such registration is
available. The Purchaser understands that any certificate or certificates
representing the Shares shall bear a legend to such effect. The Shares are
being acquired by the Purchaser not with a view to any distribution or resale
thereof in any transaction which would be in violation of the 1933 Act and the
rules promulgated thereunder, or any state securities statute.
6.5 The Purchaser is an accredited investor within the meaning of
Regulation D under the Securities Act of 1933.
7.0 Indemnification
7.1 Each of the Sellers severally agrees to indemnify, defend and
hold harmless the Purchaser, its officers, employees and agents, (collectively,
the "Purchaser Indemnified Persons"), from and against all losses, claims,
damages, liabilities, expenses (including legal fees and expenses), judgments,
fines, settlements and other amounts incurred or suffered by the Purchaser or
the Purchaser Indemnified Persons and arising out of the inaccuracy of any of
the representations and warranties made by such Seller in this Agreement or any
breach by such Seller of this Agreement. The Purchaser agrees that neither it
nor the Purchaser Indemnified Persons shall seek against the Seller, nor shall
the Sellers be liable for, any consequential, punitive, special or exemplary
damages for any breach of this Agreement or the agreements and transactions
contemplated hereby.
7.2 The Purchaser agrees to indemnify, defend and hold harmless each
of the Sellers from and against all losses, claims, damages, liabilities,
expenses (including legal fees and expenses), judgments, fines, settlements and
other amounts incurred or suffered by the Sellers and arising out of the
inaccuracy of any of the representations and warranties made by the Purchaser in
this Agreement or any breach by the Purchaser of this Agreement. Each of the
Sellers agrees that he shall not seek against the Purchaser or the Purchaser
Indemnified Persons, nor shall the Purchaser or the Purchaser Indemnified
Persons be liable for, any consequential, punitive, special or exemplary damages
for any breach of this Agreement or the agreements and transactions contemplated
hereby.
7.3 Any person entitled to indemnification hereunder will give prompt
written notice to the indemnifying person of any claim with respect to which it
seeks indemnification and, unless in such indemnified person's reasonable
judgment a conflict of interest between such indemnified and indemnifying
persons may exist with respect to such claim, permit such indemnifying person to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified person. If such defense is assumed, the indemnifying person will
not be subject to any liability for any settlement made by the indemnified
person without its or his consent (but such consent will not be unreasonably
withheld). An indemnifying person who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all parties indemnified by such indemnifying person
with respect to such claim, unless in the reasonable judgment of such counsel a
conflict of interest may exist between such indemnified person and any other of
such indemnified persons with respect to such claim.
8.0 Conditions
8.1 The obligations of the parties to consummate the purchase and
sale of the Shares and the Subscription Rights shall be subject to the
satisfaction or waiver of the following conditions:
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8.1.1 The respective deliveries of the parties contemplated by
Section 4.2 shall have occurred at or prior to the Closing.
8.1.2 PFCI shall have consented in writing to the sale of the
Shares by each of the Sellers to the Purchaser (and the sale of
any shares by such Seller to BCI pursuant to any exercise of the
options granted herein) as required by Section 4 of the
respective Stock Subscription Agreements dated January 31, 1997
between each Seller and PFCI.
9.0 Miscellaneous
9.1 The representations, warranties, covenants and indemnification
agreements contained herein are continuing in nature and the representations and
warranties of the parties shall survive until the first anniversary of the date
hereof except the representations and warranties in the last two sentences of
Section 5.2, which shall survive until the third anniversary of the date hereof,
regardless of any investigation made by or on behalf of any party to this
Agreement.
9.2 The parties hereto may amend, modify and supplement this
Agreement in such manner as may be agreed upon by them in writing.
9.3 Each party to this Agreement shall pay all of the expenses
incurred by it in connection with this Agreement, including without limitation
its legal and accounting fees and expenses, and the commissions, fees and
expenses of any person employed or retained by it to bring about, or to
represent it in, the transactions contemplated hereby.
9.4 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
9.5 This instrument and the exhibits and schedules attached hereto
contain the entire agreement of the parties hereto with respect to the purchase
of the Shares, and supersede all prior understandings and agreements of the
parties with respect to the subject matter hereof.
9.6 The descriptive headings in this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
9.7 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
9.8 All notices provided for in this Agreement shall be in writing,
duly signed by the party giving such notice, and shall be sent by Federal
Express or other reliable overnight courier, sent by fax or mailed by registered
or certified mail, return receipt requested, as follows:
If to one of the Sellers, addressed to such party at:
Xxxxx X. Xxxx
c/o Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
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Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
with a copy to:
Xxxx X. Xxxxxx
c/o Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
If to the Purchaser, addressed to:
Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
or at such other address as the recipient may specify from time to
time in writing. Each notice shall be deemed to have been given upon the
earlier of the receipt of such notice by the intended recipient thereof, two
days after it is sent by Federal Express or other reliable overnight courier or
sent by fax, or five days after it is mailed by registered or certified mail,
return receipt requested.
9.9 The Company agrees to use reasonable best efforts to assist each
of the Sellers in connection with any proposal of such Seller to transfer any of
the Notes (including any notes delivered pursuant to Section 3.4), including by
providing appropriate certifications as to factual matters and similar actions,
provided that the Company shall not be obligated to pay any money or incur any
additional monetary obligation or liability hereunder.
9.10 This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado applicable to contracts made and to be
performed therein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
/s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
Boston Chicken, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
------------------------
Its: Vice President
------------------------
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NEITHER THIS PROMISSORY NOTE NOR THE SHARES DESCRIBED IN THIS
PROMISSORY NOTE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR UNDER THE SECURITIES LAWS OF ANY STATE AND THEY MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THIS PROMISSORY
NOTE AND UNLESS EITHER (A) THEY ARE REGISTERED UNDER THE ACT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR (B) BOSTON CHICKEN, INC. HAS RECEIVED
EVIDENCE SATISFACTORY TO IT THAT SUCH PROPOSED DISPOSITION IS EXEMPT FROM SUCH
REGISTRATION.
THE UNDERSIGNED WAIVES THE RIGHT TO ASSERT AGAINST ANY ASSIGNEE OF THE
HOLDER, OR ANY SUBSEQUENT ASSIGNEE, ANY DEFENSE, COUNTERCLAIM, OR SETOFF THAT
THE UNDERSIGNED COULD ASSERT AGAINST THE HOLDER IN AN ACTION BROUGHT BY THE
HOLDER UPON THIS NOTE OTHER THAN ANY DEFENSE, COUNTERCLAIM, OR SETOFF TO WHICH A
HOLDER IN DUE COURSE WOULD BE SUBJECT UNDER THE COLORADO UNIFORM COMMERCIAL
CODE.
PROMISSORY NOTE
$3,181,480.000 August 27, 1997
Golden, Colorado
For value received, the undersigned hereby promises to pay to the
order of Xxxxx X. Xxxx (the "Holder"), on September 26, 1998, the principal
amount of $3,181,480.00, together with interest thereon as provided herein.
This Note shall bear interest at a rate of 9.5% per annum. Interest
shall be payable quarterly on March 31, June 30, September 30 and December 31 of
each year and at maturity. Interest shall be calculated for actual days elapsed
on the basis of a 360-day year. If any payment of principal of, or interest on,
or any other amount owed by the undersigned under this Note becomes due and
payable on other than a Business Day (as defined below), the maturity thereof
shall be extended to the next succeeding Business Day. The term "Business Day"
means any day that is not a Saturday, Sunday or legal holiday in Golden,
Colorado on which banks are not authorized or required to be closed.
This Note shall be payable at the offices of Boston Chicken, Inc. (the
"Company"), 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxx, Xxxxxxxx, or such other place in
the United States of America as the lawful holder hereof may from time to time
in writing designate.
The principal amount of this Note and any accrued interest due on the
payment date or otherwise may be paid at the Company's option in (x) lawful
money of the United States of
America in immediately available funds (the "Cash"), (y) shares (the "Shares")
of common stock, $.01 par value per share, of the Company (the "Common Stock")
valued at the average of the closing sales prices per share of the Common Stock
quoted on the Nasdaq National Market, or, in the event the Common Stock is not
quoted on the Nasdaq National Market, on such other securities exchange on which
the Common Stock is then traded, as reported in the Wall Street Journal (Western
Edition), for the five (5) trading days immediately prior to the second Business
Day before the date of payment (the "Average Price"), freely transferable by
such Holder for a period of at least 30 days from the date on which the Shares
are delivered to or for the account of the Holder (the "Date of Payment"), if
such Holder is not an Affiliate (as hereinafter defined) of the Company, or for
a period of 365 days from the Date of Payment, if such Holder is an Affiliate of
the Company, pursuant to an effective registration statement under the Act
covering the resale by such Holder of the Shares (the "Registration Statement")
and approved for listing on the Nasdaq National Market or such other securities
exchange on which the Common Stock is then listed or traded or (z) a combination
of Cash and Shares, determined with reference to the preceding clauses (x) and
(y).
If during the 30-day period or 365-day period, as applicable, after
the Date of Payment there occurs any development or event which requires an
amendment to the Registration Statement or a supplement to the related
prospectus (the "Resale Prospectus") (in each case as amended or supplemented)
so that they will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading: (i) the Company shall immediately notify the Holder
of the occurrence of such development or event; (ii) upon receipt of such
notice, the Holder shall discontinue dispositions of the Shares until the Holder
shall have received copies of the amended or supplemented Resale Prospectus
contemplated above or been advised by the Company in writing that use of the
Resale Prospectus may be resumed; (iii) as promptly as practicable, but not
later than one hundred twenty (120) days after such notice, the Company shall
take such action as is necessary to amend the Registration Statement or
supplement the prospectus to permit sales of the Shares to be made thereunder
and shall furnish such amended or supplemented Resale Prospectus in reasonable
quantities (as thereafter deliverable to the purchasers of Shares) to the Holder
so that such Resale Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; and (iv) the 30-day
period or 365-day period, as applicable, shall be extended by the number of days
during which the Holder is required to discontinue dispositions of the Shares,
but such extension shall not increase the respective periods beyond a total of
30 days or 365 days, as the case may be.
In the event (i) the Holder is not an Affiliate of the Company and the
Holder sells all of the Shares delivered to the Holder in connection with any
payment of principal and/or interest as provided in the fourth paragraph of this
Note within the first ten (10) trading days on which the Nasdaq National Market
is open for business immediately following the Date of Payment (the "Guarantee
Period") for cash in one or more bona fide broker's or market maker transactions
in accordance with Rule 145 under the 1933 Act, through or to Xxxxxxx Lynch,
Pierce, Xxxxxx and Xxxxx Incorporated ("Xxxxxxx Xxxxx"), to one or more persons
not affiliated with, related to, or
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associated with the Holder, in which the Holder has instructed Xxxxxxx Xxxxx to
make a good faith effort to maximize the selling price; (ii) the average price
per share received in such sales, net of broker's commissions, is less than the
Average Price (such difference being referred to herein as the "Per-Share
Shortfall"); and (iii) the Company receives notice from the Holder within five
(5) days of the expiration of the Guarantee Period of the amount of the Per-
Share Shortfall, the Company shall pay to the Holder, within five (5) business
days of receipt of the applicable confirmation slips, an amount, in cash or
Shares of Common Stock (valued as provided in the following paragraph) at the
Company's option, equal to the Per-Share Shortfall multiplied by the number of
Shares sold during the Guarantee Period (the "Shortfall Amount").
In the event the Company elects to pay the Shortfall Amount under the
preceding paragraph in Shares of Common Stock (the "Shortfall Shares"), the
number of Shortfall Shares to be delivered to the Holder shall be determined by
dividing the Shortfall Amount by the average closing sales price per share of
the Common Stock quoted on the Nasdaq National Market, as reported in the Wall
Street Journal (Western Edition), for the five (5) trading days immediately
prior to the last business day before the date on which the Company delivers the
Shortfall Shares to the Holder. Any Shortfall Shares so delivered shall also be
freely transferable for a period of 30 days from the date of their payment by
such Holder pursuant to an effective registration statement under the Act
covering the resale by such Holder of the Shares and approved for listing on the
Nasdaq National Market or the securities exchange on which the Common Stock is
then listed or traded. The provisions of the fourth and fifth paragraphs of
this Promissory Note shall apply, mutatis mutandis, to the registration under
the Act of such Shortfall Shares.
The Company agrees to reimburse, to the extent permitted by law, the
Holder, its directors, officers, employees and agents, and each person, if any,
who controls the Holder within the meaning of the Act, for any and all losses,
claims, damages, expenses and liabilities to which they or any of them may
become subject under the Act or any other statute or common law or otherwise by
reason of its offer and sale of the Shares or Shortfall Shares, and to reimburse
the Holder for any reasonable legal or other expenses actually and reasonably
incurred in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, expenses, liabilities, or actions arise
out of, or are based upon:
(i) any untrue statement of a material fact or any alleged untrue
statement of a material fact contained in or incorporated by reference in the
Registration Statement or any post-effective amendment thereto, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or
(ii) any untrue statement of a material fact or any alleged
untrue statement of a material fact contained or incorporated by reference in
the Resale Prospectus (as amended or supplemented if the Company shall have
filed with the Securities and Exchange Commission any amendment or supplement
thereto), if used within the period during which the Company is required to keep
the Registration Statement and Resale Prospectus current, or the omission or
alleged omission to state therein a material fact necessary in order to
3
make the statements contained therein, in light of the circumstances under which
they were made, not misleading;
provided, however, that the Company's obligations contained herein shall not
apply to losses, claims, damages, expenses, liabilities, or actions arising out
of, or based upon any such untrue statement or any such omission or alleged
omission, if such statement or omission was made in reliance upon, and in
conformity with, information relating to the Holder furnished to the Company by
the Holder expressly for use in connection with the preparation of the
Registration Statement or any Resale Prospectus or any such amendment or
supplement thereto.
The Holder, by its acceptance of this Promissory Note, shall (in the
same manner and to the same extent as set forth in the preceding paragraph),
reimburse, to the extent permitted by law, the Company, its directors, officers,
employees and agents, and each person, if any, who controls the Company within
the meaning of the Act, if such statement or omission was made in reliance upon
and in conformity with information relating to the Holder furnished to the
Company by the Holder expressly for use in connection with the preparation of
the Registration Statement or the Resale Prospectus or any amendment or
supplement thereto.
Any person entitled to reimbursement hereunder will (i) give written
notice to the reimbursing party of any claim with respect to which it seeks
reimbursement within 14 days of the person entitled to reimbursement receiving
notice thereof (provided, however, that any failure by a person entitled to
reimbursement hereunder to give such prompt written notice shall not adversely
affect such person's rights hereunder unless and then only to the extent that
such failure prejudices the rights of the reimbursing party hereunder) and (ii)
unless in such party's reasonable judgment a conflict or interest between such
party and the reimbursing parties may exist with respect to such claim, permit
such reimbursing party to assume the defense of such claim with counsel
reasonably satisfactory to the party being reimbursed. If such defense is
assumed, the reimbursing party will not be subject to any liability for any
settlement made by the party being reimbursed without its consent (but such
consent will not be unreasonably withheld). A reimbursing party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
being reimbursed by such reimbursing party with respect to such claim, unless in
the reasonable judgment of such counsel a conflict of interest may exist between
such party being reimbursed and any other of such reimbursed parties with
respect to such claim.
If the reimbursement provided for herein is unavailable to or
insufficient to hold harmless the party being reimbursed under the second and
third preceding paragraphs in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then each applicable reimbursing party, in
lieu of reimbursing such party, shall contribute to the amount paid or payable
by such party being reimbursed as a result of such losses, claims, damages,
expenses, or liabilities in such proportion as is appropriate to reflect the
relative fault of the Holder and the Company in connection with the statements
or omissions which resulted in such losses, claims, damages, expenses, or
liabilities. The relative fault of the Holder and the Company shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the
4
Holder or by the Company, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, expenses, and liabilities referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The Holder, by
its acceptance hereof, and the Company agree that it would not be just and
equitable if contribution pursuant hereto were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
As used herein, the term "Affiliate" means, with respect to any
specified person, any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
person, for the purposes of this definition, "control" when used with respect to
any person means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
The occurrence of any one of the following events shall constitute an
event of default ("Event of Default") under this Note: (a) if the undersigned
fails to pay the principal of this Note at the time and place when the same is
due and payable, (b) if the undersigned fails to pay any interest payment or
Shortfall Amount on this Note at the time and place when the same is due and
such default continues for a period of five days following receipt of notice of
non-payment, (c) if the undersigned breaches any covenant contained in this Note
other than the covenants to pay principal, and interest or the Shortfall Amount
and such breach is not cured within 10 business days of written notice thereof,
or (d) if the undersigned shall file a voluntary petition in bankruptcy, or
shall be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file any answer admitting the
material allegations of a petition filed against it in any such proceeding, or
if, within 60 days after the commencement of any proceeding against the
undersigned seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed or if, within
60 days after the appointment without the consent or acquiescence of the
undersigned of any trustee, receiver or liquidator of the undersigned or of all
or any substantial part of its properties, such appointment shall not have been
vacated.
If an Event of Default has occurred (whether or not it is continuing),
then the holder of this Note shall have the right at its sole option and in
addition to any other available remedy, to declare this Note to be due and
payable, whereupon the same shall forthwith mature and become due and payable
without presentment, demand, protest or notice, all of which are hereby waived.
In the case of an Event of Default, all payments of principal, interest, the
Shortfall Amount or other payments under this Note, shall be made in Cash. In
case of a default in the payment of
5
any principal of, or interest on, this Note, the undersigned will pay the holder
hereof such further amount as shall be sufficient to cover the reasonable cost
and expense of collection, including without limitation reasonable attorneys'
fees. No course of dealing and no delay on the part of the holder hereof in
exercising any right shall operate as a waiver thereof or otherwise prejudice
such holder's rights. The rights and remedies of the holder hereof are
cumulative and are not exclusive of any rights or remedies it would otherwise
have.
The Company covenants and agrees, and each holder of this Promissory
Note, whether upon original issue or upon transfer or assignment hereof, by such
holder's acceptance hereof likewise covenants and agrees, that upon the payment
or distribution of the assets of the Company of any kind or character, whether
in cash, property or securities, to creditors upon any dissolution, winding-up,
total or partial liquidation or reorganization of the Company (whether voluntary
or involuntary, or in bankruptcy, insolvency, reorganization, liquidation,
receivership proceedings, or upon an assignment for the benefit of creditors, or
any other marshaling of the assets and liabilities of the Company, or
otherwise), all Senior Indebtedness shall first be paid in full, in cash, or
have provision made for such payment, before any payment (other than in Shares
of Common Stock) is made other than in Shares of Common Stock on account of the
principal of or interest or Shortfall Amount on or other amounts due in respect
of the indebtedness evidenced by this Promissory Note. As used herein, the term
"Senior Indebtedness" means the principal of and premium, if any, and interest
(including, without limitation, any interest accruing subsequent to the filing
of a petition or other action concerning bankruptcy or other similar
proceedings, whether or not constituting an allowed claim in any such
proceedings) on, and fees, costs, enforcement expenses (including legal fees and
disbursements), collateral protection expenses and other reimbursement or
indemnity obligations in respect of, all indebtedness or obligations of the
Company to banks and other lending institutions for money borrowed or in respect
of credit or other banking or lease financing facilities, whether presently
outstanding or hereafter incurred or created and including any extensions,
renewals, modifications or amendments thereof, including, without limitation,
under (i) the Secured Revolving Credit Agreement dated as of December 9, 1996
among the Company, Bankers Trust Company, as Documentation Agent, Bank of
America Illinois, as Agent, and the Lenders named therein, (ii) the Facilities
Agreement dated as of December 9, 1996 among the Company, Bank of America
Illinois, as Agent for Certain Lenders and General Electric Capital Corporation,
(iii) Master Lease Agreement dated as of September 27, 1995 between the Company
and General Electric Capital Corporation, for itself and as agent for other
participants, as amended, and (iv) Master Lease Agreement No. 2 dated as of
December 9, 1996, between the Company and General Electric Capital Corporation,
for itself and as agent for other participants, and (v) any renewals,
extensions, refundings, restructurings, amendments or modifications of the
facilities referred to in (i), (ii), (iii) or (iv).
Upon the happening of a default in payment (whether at maturity or at
a date fixed for prepayment or by acceleration or otherwise) of the principal of
or interest on any Senior Indebtedness, as such default is defined under or in
respect of such senior Indebtedness or in any agreement pursuant to which such
Senior Indebtedness has been incurred (the relevant "Senior Debt Agreement"),
then, unless and until the amount of such Senior Indebtedness then due shall
have been paid in full or provision made therefor in a manner satisfactory to
the holders of such
6
Senior Indebtedness, or such default shall have been cured or waived or shall
have ceased to exist, the Company shall not pay principal of or interest or the
Shortfall Amount on this Promissory Note and shall not repurchase, redeem or
otherwise retire this Promissory Note, in either case other than in or for
Shares of Common Stock (collectively, "payment of this Promissory Note").
Upon the happening of an event of default with respect to any Senior
Indebtedness (other than under circumstances described in the immediately
preceding paragraph of this Promissory Note are applicable), as such event of
default is defined under the relevant Senior Debt Agreement, permitting the
holders thereof to immediately accelerate the maturity thereof, and upon written
notice thereof given to the Company and the Holder by any holders of such Senior
Indebtedness or their representative or any trustee therefor (a "Default
Notice"), then, unless and until such event of default shall have been cured or
waived in writing by the holders of such Senior Indebtedness or shall have
ceased to exist, no direct or indirect payment of this Promissory Note shall be
made; provided, however, that this paragraph shall not prevent the making of any
such payment (which is not otherwise prohibited by the immediately preceding
paragraph of this Promissory Note) for more than 89 days after the Default
Notice shall have been given unless the Senior Indebtedness in respect of which
such event of default exists has been declared due and payable in its entirety,
in which case no such payment may be made until such acceleration has been
waived, rescinded or annulled, or such Senior Indebtedness shall have been paid
in full, or payment thereof shall be duly provided for in cash or in any other
manner than one Default Notice shall be given with respect to the same issue of
Senior Indebtedness within a period 360 consecutive days, and no event of
default which existed or was continuing on the date of any Default Notice and
was known to the holders of such issue of Senior Indebtedness shall be made the
basis for the giving of a subsequent Default Notice by the holders of such issue
of Senior Indebtedness.
In the event that, notwithstanding the foregoing three paragraphs of
this Promissory Note, any payment of this Promissory Note shall be made or on
behalf of the Company and received by the Holder, then, unless and until the
amount of such Senior Indebtedness then due shall have been paid in full or
provision made therefor or such default shall have been cured or waived, such
payment shall be held in trust for the benefit of, and shall be immediately paid
over to, the holders of Senior Indebtedness or their representative or any
trustee therefor ratably according to the aggregate amounts remaining unpaid on
account of the principal of and interest on, and fees and other charges in
respect of, the Senior Indebtedness held or represented by each, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of Senior Indebtedness.
The undersigned shall have the right to prepay in whole or in part,
and from time to time, the remaining unpaid principal balance hereunder, without
penalty. The undersigned hereby waives presentment for payment, notice of
dishonor, protest and notice of protest.
7
This Note shall be governed by and construed in accordance with the
laws of the State of Colorado.
BOSTON CHICKEN, INC.
By /s/ Xxxx X. Xxxxxxx
-------------------------
Vice President
8
NEITHER THIS PROMISSORY NOTE NOR THE SHARES DESCRIBED IN THIS
PROMISSORY NOTE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR UNDER THE SECURITIES LAWS OF ANY STATE AND THEY MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THIS PROMISSORY
NOTE AND UNLESS EITHER (A) THEY ARE REGISTERED UNDER THE ACT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR (B) BOSTON CHICKEN, INC. HAS RECEIVED
EVIDENCE SATISFACTORY TO IT THAT SUCH PROPOSED DISPOSITION IS EXEMPT FROM SUCH
REGISTRATION.
THE UNDERSIGNED WAIVES THE RIGHT TO ASSERT AGAINST ANY ASSIGNEE OF THE
HOLDER, OR ANY SUBSEQUENT ASSIGNEE, ANY DEFENSE, COUNTERCLAIM, OR SETOFF THAT
THE UNDERSIGNED COULD ASSERT AGAINST THE HOLDER IN AN ACTION BROUGHT BY THE
HOLDER UPON THIS NOTE OTHER THAN ANY DEFENSE, COUNTERCLAIM, OR SETOFF TO WHICH A
HOLDER IN DUE COURSE WOULD BE SUBJECT UNDER THE COLORADO UNIFORM COMMERCIAL
CODE.
PROMISSORY NOTE
$3,181,480.000 August 27, 1997
Golden, Colorado
For value received, the undersigned hereby promises to pay to the
order of Xxxx X. Xxxxxx (the "Holder"), on September 26, 1998, the principal
amount of $3,181,480.00, together with interest thereon as provided herein.
This Note shall bear interest at a rate of 9.5% per annum. Interest
shall be payable quarterly on March 31, June 30, September 30 and December 31 of
each year and at maturity. Interest shall be calculated for actual days elapsed
on the basis of a 360-day year. If any payment of principal of, or interest on,
or any other amount owed by the undersigned under this Note becomes due and
payable on other than a Business Day (as defined below), the maturity thereof
shall be extended to the next succeeding Business Day. The term "Business Day"
means any day that is not a Saturday, Sunday or legal holiday in Golden,
Colorado on which banks are not authorized or required to be closed.
This Note shall be payable at the offices of Boston Chicken, Inc. (the
"Company"), 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxx, Xxxxxxxx, or such other place in
the United States of America as the lawful holder hereof may from time to time
in writing designate.
The principal amount of this Note and any accrued interest due on the
payment date or otherwise may be paid at the Company's option in (x) lawful
money of the United States of
1
America in immediately available funds (the "Cash"), (y) shares (the "Shares")
of common stock, $.01 par value per share, of the Company (the "Common Stock")
valued at the average of the closing sales prices per share of the Common Stock
quoted on the Nasdaq National Market, or, in the event the Common Stock is not
quoted on the Nasdaq National Market, on such other securities exchange on which
the Common Stock is then traded, as reported in the Wall Street Journal (Western
Edition), for the five (5) trading days immediately prior to the second Business
Day before the date of payment (the "Average Price"), freely transferable by
such Holder for a period of at least 30 days from the date on which the Shares
are delivered to or for the account of the Holder (the "Date of Payment"), if
such Holder is not an Affiliate (as hereinafter defined) of the Company, or for
a period of 365 days from the Date of Payment, if such Holder is an Affiliate of
the Company, pursuant to an effective registration statement under the Act
covering the resale by such Holder of the Shares (the "Registration Statement")
and approved for listing on the Nasdaq National Market or such other securities
exchange on which the Common Stock is then listed or traded or (z) a combination
of Cash and Shares, determined with reference to the preceding clauses (x) and
(y).
If during the 30-day period or 365-day period, as applicable, after
the Date of Payment there occurs any development or event which requires an
amendment to the Registration Statement or a supplement to the related
prospectus (the "Resale Prospectus") (in each case as amended or supplemented)
so that they will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading: (i) the Company shall immediately notify the Holder
of the occurrence of such development or event; (ii) upon receipt of such
notice, the Holder shall discontinue dispositions of the Shares until the Holder
shall have received copies of the amended or supplemented Resale Prospectus
contemplated above or been advised by the Company in writing that use of the
Resale Prospectus may be resumed; (iii) as promptly as practicable, but not
later than one hundred twenty (120) days after such notice, the Company shall
take such action as is necessary to amend the Registration Statement or
supplement the prospectus to permit sales of the Shares to be made thereunder
and shall furnish such amended or supplemented Resale Prospectus in reasonable
quantities (as thereafter deliverable to the purchasers of Shares) to the Holder
so that such Resale Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; and (iv) the 30-day
period or 365-day period, as applicable, shall be extended by the number of days
during which the Holder is required to discontinue dispositions of the Shares,
but such extension shall not increase the respective periods beyond a total of
30 days or 365 days, as the case may be.
In the event (i) the Holder is not an Affiliate of the Company and the
Holder sells all of the Shares delivered to the Holder in connection with any
payment of principal and/or interest as provided in the fourth paragraph of this
Note within the first ten (10) trading days on which the Nasdaq National Market
is open for business immediately following the Date of Payment (the "Guarantee
Period") for cash in one or more bona fide broker's or market maker transactions
in accordance with Rule 145 under the 1933 Act, through or to Xxxxxxx Lynch,
Pierce, Xxxxxx and Xxxxx Incorporated ("Xxxxxxx Xxxxx"), to one or more persons
not affiliated with, related to, or
2
associated with the Holder, in which the Holder has instructed Xxxxxxx Xxxxx to
make a good faith effort to maximize the selling price; (ii) the average price
per share received in such sales, net of broker's commissions, is less than the
Average Price (such difference being referred to herein as the "Per-Share
Shortfall"); and (iii) the Company receives notice from the Holder within five
(5) days of the expiration of the Guarantee Period of the amount of the Per-
Share Shortfall, the Company shall pay to the Holder, within five (5) business
days of receipt of the applicable confirmation slips, an amount, in cash or
Shares of Common Stock (valued as provided in the following paragraph) at the
Company's option, equal to the Per-Share Shortfall multiplied by the number of
Shares sold during the Guarantee Period (the "Shortfall Amount").
In the event the Company elects to pay the Shortfall Amount under the
preceding paragraph in Shares of Common Stock (the "Shortfall Shares"), the
number of Shortfall Shares to be delivered to the Holder shall be determined by
dividing the Shortfall Amount by the average closing sales price per share of
the Common Stock quoted on the Nasdaq National Market, as reported in the Wall
Street Journal (Western Edition), for the five (5) trading days immediately
prior to the last business day before the date on which the Company delivers the
Shortfall Shares to the Holder. Any Shortfall Shares so delivered shall also be
freely transferable for a period of 30 days from the date of their payment by
such Holder pursuant to an effective registration statement under the Act
covering the resale by such Holder of the Shares and approved for listing on the
Nasdaq National Market or the securities exchange on which the Common Stock is
then listed or traded. The provisions of the fourth and fifth paragraphs of
this Promissory Note shall apply, mutatis mutandis, to the registration under
the Act of such Shortfall Shares.
The Company agrees to reimburse, to the extent permitted by law, the
Holder, its directors, officers, employees and agents, and each person, if any,
who controls the Holder within the meaning of the Act, for any and all losses,
claims, damages, expenses and liabilities to which they or any of them may
become subject under the Act or any other statute or common law or otherwise by
reason of its offer and sale of the Shares or Shortfall Shares, and to reimburse
the Holder for any reasonable legal or other expenses actually and reasonably
incurred in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, expenses, liabilities, or actions arise
out of, or are based upon:
(i) any untrue statement of a material fact or any alleged untrue
statement of a material fact contained in or incorporated by reference in the
Registration Statement or any post-effective amendment thereto, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or
(ii) any untrue statement of a material fact or any alleged
untrue statement of a material fact contained or incorporated by reference in
the Resale Prospectus (as amended or supplemented if the Company shall have
filed with the Securities and Exchange Commission any amendment or supplement
thereto), if used within the period during which the Company is required to keep
the Registration Statement and Resale Prospectus current, or the omission or
alleged omission to state therein a material fact necessary in order to
3
make the statements contained therein, in light of the circumstances under which
they were made, not misleading;
provided, however, that the Company's obligations contained herein shall not
apply to losses, claims, damages, expenses, liabilities, or actions arising out
of, or based upon any such untrue statement or any such omission or alleged
omission, if such statement or omission was made in reliance upon, and in
conformity with, information relating to the Holder furnished to the Company by
the Holder expressly for use in connection with the preparation of the
Registration Statement or any Resale Prospectus or any such amendment or
supplement thereto.
The Holder, by its acceptance of this Promissory Note, shall (in the
same manner and to the same extent as set forth in the preceding paragraph),
reimburse, to the extent permitted by law, the Company, its directors, officers,
employees and agents, and each person, if any, who controls the Company within
the meaning of the Act, if such statement or omission was made in reliance upon
and in conformity with information relating to the Holder furnished to the
Company by the Holder expressly for use in connection with the preparation of
the Registration Statement or the Resale Prospectus or any amendment or
supplement thereto.
Any person entitled to reimbursement hereunder will (i) give written
notice to the reimbursing party of any claim with respect to which it seeks
reimbursement within 14 days of the person entitled to reimbursement receiving
notice thereof (provided, however, that any failure by a person entitled to
reimbursement hereunder to give such prompt written notice shall not adversely
affect such person's rights hereunder unless and then only to the extent that
such failure prejudices the rights of the reimbursing party hereunder) and (ii)
unless in such party's reasonable judgment a conflict or interest between such
party and the reimbursing parties may exist with respect to such claim, permit
such reimbursing party to assume the defense of such claim with counsel
reasonably satisfactory to the party being reimbursed. If such defense is
assumed, the reimbursing party will not be subject to any liability for any
settlement made by the party being reimbursed without its consent (but such
consent will not be unreasonably withheld). A reimbursing party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
being reimbursed by such reimbursing party with respect to such claim, unless in
the reasonable judgment of such counsel a conflict of interest may exist between
such party being reimbursed and any other of such reimbursed parties with
respect to such claim.
If the reimbursement provided for herein is unavailable to or
insufficient to hold harmless the party being reimbursed under the second and
third preceding paragraphs in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then each applicable reimbursing party, in
lieu of reimbursing such party, shall contribute to the amount paid or payable
by such party being reimbursed as a result of such losses, claims, damages,
expenses, or liabilities in such proportion as is appropriate to reflect the
relative fault of the Holder and the Company in connection with the statements
or omissions which resulted in such losses, claims, damages, expenses, or
liabilities. The relative fault of the Holder and the Company shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the
4
Holder or by the Company, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, expenses, and liabilities referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The Holder, by
its acceptance` hereof, and the Company agree that it would not be just and
equitable if contribution pursuant hereto were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
As used herein, the term "Affiliate" means, with respect to any
specified person, any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
person, for the purposes of this definition, "control" when used with respect to
any person means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
The occurrence of any one of the following events shall constitute an
event of default ("Event of Default") under this Note: (a) if the undersigned
fails to pay the principal of this Note at the time and place when the same is
due and payable, (b) if the undersigned fails to pay any interest payment or
Shortfall Amount on this Note at the time and place when the same is due and
such default continues for a period of five days following receipt of notice of
non-payment, (c) if the undersigned breaches any covenant contained in this Note
other than the covenants to pay principal, and interest or the Shortfall Amount
and such breach is not cured within 10 business days of written notice thereof,
or (d) if the undersigned shall file a voluntary petition in bankruptcy, or
shall be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file any answer admitting the
material allegations of a petition filed against it in any such proceeding, or
if, within 60 days after the commencement of any proceeding against the
undersigned seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed or if, within
60 days after the appointment without the consent or acquiescence of the
undersigned of any trustee, receiver or liquidator of the undersigned or of all
or any substantial part of its properties, such appointment shall not have been
vacated.
If an Event of Default has occurred (whether or not it is continuing),
then the holder of this Note shall have the right at its sole option and in
addition to any other available remedy, to declare this Note to be due and
payable, whereupon the same shall forthwith mature and become due and payable
without presentment, demand, protest or notice, all of which are hereby waived.
In the case of an Event of Default, all payments of principal, interest, the
Shortfall Amount or other payments under this Note, shall be made in Cash. In
case of a default in the payment of
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any principal of, or interest on, this Note, the undersigned will pay the holder
hereof such further amount as shall be sufficient to cover the reasonable cost
and expense of collection, including without limitation reasonable attorneys'
fees. No course of dealing and no delay on the part of the holder hereof in
exercising any right shall operate as a waiver thereof or otherwise prejudice
such holder's rights. The rights and remedies of the holder hereof are
cumulative and are not exclusive of any rights or remedies it would otherwise
have.
The Company covenants and agrees, and each holder of this Promissory
Note, whether upon original issue or upon transfer or assignment hereof, by such
holder's acceptance hereof likewise covenants and agrees, that upon the payment
or distribution of the assets of the Company of any kind or character, whether
in cash, property or securities, to creditors upon any dissolution, winding-up,
total or partial liquidation or reorganization of the Company (whether voluntary
or involuntary, or in bankruptcy, insolvency, reorganization, liquidation,
receivership proceedings, or upon an assignment for the benefit of creditors, or
any other marshaling of the assets and liabilities of the Company, or
otherwise), all Senior Indebtedness shall first be paid in full, in cash, or
have provision made for such payment, before any payment (other than in Shares
of Common Stock) is made other than in Shares of Common Stock on account of the
principal of or interest or Shortfall Amount on or other amounts due in respect
of the indebtedness evidenced by this Promissory Note. As used herein, the term
"Senior Indebtedness" means the principal of and premium, if any, and interest
(including, without limitation, any interest accruing subsequent to the filing
of a petition or other action concerning bankruptcy or other similar
proceedings, whether or not constituting an allowed claim in any such
proceedings) on, and fees, costs, enforcement expenses (including legal fees and
disbursements), collateral protection expenses and other reimbursement or
indemnity obligations in respect of, all indebtedness or obligations of the
Company to banks and other lending institutions for money borrowed or in respect
of credit or other banking or lease financing facilities, whether presently
outstanding or hereafter incurred or created and including any extensions,
renewals, modifications or amendments thereof, including, without limitation,
under (i) the Secured Revolving Credit Agreement dated as of December 9, 1996
among the Company, Bankers Trust Company, as Documentation Agent, Bank of
America Illinois, as Agent, and the Lenders named therein, (ii) the Facilities
Agreement dated as of December 9, 1996 among the Company, Bank of America
Illinois, as Agent for Certain Lenders and General Electric Capital Corporation,
(iii) Master Lease Agreement dated as of September 27, 1995 between the Company
and General Electric Capital Corporation, for itself and as agent for other
participants, as amended, and (iv) Master Lease Agreement No. 2 dated as of
December 9, 1996, between the Company and General Electric Capital Corporation,
for itself and as agent for other participants, and (v) any renewals,
extensions, refundings, restructurings, amendments or modifications of the
facilities referred to in (i), (ii), (iii) or (iv).
Upon the happening of a default in payment (whether at maturity or at
a date fixed for prepayment or by acceleration or otherwise) of the principal of
or interest on any Senior Indebtedness, as such default is defined under or in
respect of such senior Indebtedness or in any agreement pursuant to which such
Senior Indebtedness has been incurred (the relevant "Senior Debt Agreement"),
then, unless and until the amount of such Senior Indebtedness then due shall
have been paid in full or provision made therefor in a manner satisfactory to
the holders of such
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Senior Indebtedness, or such default shall have been cured or waived or shall
have ceased to exist, the Company shall not pay principal of or interest or the
Shortfall Amount on this Promissory Note and shall not repurchase, redeem or
otherwise retire this Promissory Note, in either case other than in or for
Shares of Common Stock (collectively, "payment of this Promissory Note").
Upon the happening of an event of default with respect to any Senior
Indebtedness (other than under circumstances described in the immediately
preceding paragraph of this Promissory Note are applicable), as such event of
default is defined under the relevant Senior Debt Agreement, permitting the
holders thereof to immediately accelerate the maturity thereof, and upon written
notice thereof given to the Company and the Holder by any holders of such Senior
Indebtedness or their representative or any trustee therefor (a "Default
Notice"), then, unless and until such event of default shall have been cured or
waived in writing by the holders of such Senior Indebtedness or shall have
ceased to exist, no direct or indirect payment of this Promissory Note shall be
made; provided, however, that this paragraph shall not prevent the making of any
such payment (which is not otherwise prohibited by the immediately preceding
paragraph of this Promissory Note) for more than 89 days after the Default
Notice shall have been given unless the Senior Indebtedness in respect of which
such event of default exists has been declared due and payable in its entirety,
in which case no such payment may be made until such acceleration has been
waived, rescinded or annulled, or such Senior Indebtedness shall have been paid
in full, or payment thereof shall be duly provided for in cash or in any other
manner than one Default Notice shall be given with respect to the same issue of
Senior Indebtedness within a period 360 consecutive days, and no event of
default which existed or was continuing on the date of any Default Notice and
was known to the holders of such issue of Senior Indebtedness shall be made the
basis for the giving of a subsequent Default Notice by the holders of such issue
of Senior Indebtedness.
In the event that, notwithstanding the foregoing three paragraphs of
this Promissory Note, any payment of this Promissory Note shall be made or on
behalf of the Company and received by the Holder, then, unless and until the
amount of such Senior Indebtedness then due shall have been paid in full or
provision made therefor or such default shall have been cured or waived, such
payment shall be held in trust for the benefit of, and shall be immediately paid
over to, the holders of Senior Indebtedness or their representative or any
trustee therefor ratably according to the aggregate amounts remaining unpaid on
account of the principal of and interest on, and fees and other charges in
respect of, the Senior Indebtedness held or represented by each, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of Senior Indebtedness.
The undersigned shall have the right to prepay in whole or in part,
and from time to time, the remaining unpaid principal balance hereunder, without
penalty.
The undersigned hereby waives presentment for payment, notice of
dishonor, protest and notice of protest.
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This Note shall be governed by and construed in accordance with the
laws of the State of Colorado.
BOSTON CHICKEN, INC.
By /s/ Xxxx X. Xxxxxxx
----------------------------
Vice President
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