Exhibit 10
XANDO, INCORPORATED
AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS AGREEMENT is made as of March 30, 1999, by and among
Xando, Incorporated, a Delaware corporation (the "Company") and the Persons
listed on Schedule A attached hereto (the "INVESTING STOCKHOLDERS") and the
Persons listed on Schedule B attached hereto (the "OTHER STOCKHOLDERS"). The
Investing Stockholders and the Other Stockholders are collectively referred to
herein as the "STOCKHOLDERS," and each as a "STOCKHOLDER".
W I T N E S S E T H
WHEREAS, the Company and certain of the Stockholders are
parties to a Series C Preferred Stock Purchase Agreement of even date herewith
(the "SERIES C PURCHASE AGREEMENT"); and
WHEREAS, in order to induce such Stockholders to enter into
the Series C Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a
condition to the closing under the Series C Purchase Agreement; and
WHEREAS, certain Stockholders are parties to a registration
agreement, dated April 28, 1998 (the "ORIGINAL REGISTRATION AGREEMENT") and
desire to amend and restate the Original Registration Agreement and add
additional parties hereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after June 30,
2003, or such earlier time as the Company has completed a public offering of
its equity securities registered under the Securities Act, the holders of at
least a majority of then outstanding Underlying Common Stock (as defined in
the Series A Purchase Agreement) issued or issuable upon conversion of the
Series A Preferred or the holders of at least a majority of then outstanding
Underlying Common Stock (as defined in the Series C Purchase Agreement) issued
or issuable upon conversion of the Series C Preferred or ZAM (so long as ZAM
and its Affiliates are collectively the holders of at least 25% of the
Originally Acquired Shares (as defined in the Series C Purchase Agreement)
(the "INITIATING HOLDERS") may request registration under the Securities Act
of all or part of their Registrable Securities on Form S-1 or any similar
long-form registration ("LONG-FORM REGISTRATIONS") or, if available, on Form
S-2 or S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS"). All registrations requested pursuant to this paragraph 1(a)
are referred to herein as "DEMAND REGISTRATIONS." Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten days after receipt of any such request, the Company shall
give written notice of such requested registration to all other holders of
Registrable Securities and, subject to paragraph 1(d) below, shall include in
such registration 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) LONG-FORM REGISTRATIONS. The Initiating Holders shall be
entitled to request two Long-Form Registrations, and the Company shall pay all
Registration Expenses in connection therewith; provided that the aggregate
offering value of the Registrable Securities requested to be registered in any
Long-Form Registration must equal at least $15 million if the registration is
the Company's initial registered public offering. A registration shall not
count as one of the permitted Long-Form Registrations until it has become
effective, and no registration shall count as one of the permitted Long-Form
Registrations unless the holders of Investor Registrable Securities are able
to register and sell at least 90% of the Registrable Securities requested to
be included in such registration; provided that in any event the Company shall
pay all Registration Expenses in connection with any registration initiated as
a Long-Form Registration whether or not it has become effective and whether or
not such registration has counted as one of the permitted Long-Form
Registration. All Long-Form Registrations shall be underwritten registrations.
(c) SHELF REGISTRATIONS. At such time as the Company shall
be eligible to use Short-Form Registrations, an Initiating Holder shall be
entitled to request a shelf registration statement (the "SHELF REGISTRATION
STATEMENT") in which the Company shall pay all Registration Expenses. The
Company shall use its best efforts to make Short-Form Registrations available
for the sale of Registrable Securities. The Company shall use its best efforts
(subject to Section 1(e)) to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus included therein to
be lawfully delivered by all holders of Registrable Securities, for a period
of two (2) years (not including any period during which the Shelf Registration
Statement is not effective) from the date of its effectiveness or such shorter
period that will terminate when all the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant thereto. The Company
shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action (except as provided in Section 1(e)) that would result in
holders of Registrable Securities not being able to offer and sell such
Registrable Securities during that period, unless such action is required by
applicable law. A registration shall not count as the Shelf Registration
Statement until it has been effective for the requisite time period; provided
that in any event the Company shall pay all Registration Expenses in
connection with any registration initiated as a Shelf Registration Statement
whether or not it has become effective and whether or not such registration is
counted as the Shelf Registration Statement.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the Initiating Holder. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and
other securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the
Registrable Securities initially requesting registration, the Company shall
include in such registration, prior to the inclusion of any securities which
are not Registrable Securities, (i) first, the number of Investor Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder, and (ii) second, the number
of Other Registrable Securities requested to be included which in the opinion
of such underwriters can be sold in an orderly manner within the price range
of such offering, pro rata among the respective holders thereof on the basis
of the amount of Registrable Securities owned by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company may
postpone for up to 90 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's board of directors
determines in its reasonable good faith judgment 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 to engage in any acquisition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction; provided
that in such event, the Initiating Holder requesting such Demand Registration
shall be entitled to withdraw such request 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. The Company may delay a Demand Registration
hereunder only once in any twelve-month period. The Company will not be
obligated to effect any Demand Registration within the 90 day period
immediately following the Company's initial registered public offering.
(f) SELECTION OF UNDERWRITERS. The Company shall have the
right to select the investment banker(s) and manager(s) to administer any
Demand Registration, subject to the approval of the holders of a majority of
the Registrable Securities included in any such Demand Registration, which
approval shall not be unreasonably withheld.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without
the prior written consent of the Initiating Holders; provided that the Company
may grant rights to other Persons to participate in Piggyback Registrations so
long as such rights are subordinate to the rights of the holders of
Registrable Securities with respect to such Piggyback Registrations as
provided in paragraphs 2(c) and 2(d) hereof.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant
to a registration on Form S-4 or S-8 or any successor or similar forms) and
the registration form to be used may be used for the registration of
Registrable Securities (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
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 Company shall pay all
Registration Expenses in all Piggyback Registrations (whether such
Registration Expenses are incurred by the Company or the holders of
Registrable Securities).
(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 an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, the Investor Registrable Securities requested to be included in such
registration, pro rata among the holders of such Investor Registrable
Securities on the basis of the number of shares owned by each such holder,
(iii) third, the Other Registrable Securities requested to be included in such
registration, pro rata among the holders of such Other Registrable Securities
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.
(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 an
orderly manner in such offering within the price range 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 Investor Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of
the number of securities owned by each such holder, and (ii) second, other
securities (including, without limitation, any Other Registrable Securities)
requested to be included in such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering shall be made by the Company and must be approved
by the holders of a majority of the Registrable Securities included in such
Piggyback Registration. Such approval shall not be unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed
a registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, 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 equity securities or securities
convertible or exchangeable into or exercisable for its equity 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 90 days has elapsed from the effective
date of such previous registration.
3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities shall not effect
any public sale or distribution 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 90-day period beginning on
the effective date of the Company's initial underwritten registered public
offering of Common Stock (except for sales of securities as part of such
underwritten registered offering or as permitted under Rule 144(k)), unless
the underwriters managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior
to and during the 90-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) shall cause each holder
of its Common Stock, or any securities convertible into or exchangeable or
exercisable for Common Stock, purchased from the Company at any time after the
date of this Agreement (other than in a registered public offering) to agree
not to effect any public sale or distribution (including sales pursuant to
Rule 144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), 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 best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
to the counsel selected by the holders of a majority of the Registrable
Securities covered by such registration statement copies of all such documents
proposed to be filed, which documents shall be subject to the review and
comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than 180 days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller, the
Company shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(f) use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and, if not so listed, use
its best efforts to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 1lAa2-1 of the Securities and Exchange Commission or, failing that, to
use its best efforts to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to use its
best efforts to arrange for at least two market makers to register as such
with respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including effecting a stock
split or a combination of shares);
(i) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) permit any holder of Registrable Securities which
holder, in its sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Company, to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in
the reasonable judgment of such holder and its counsel should be included; and
(l) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration statement for
sale in any jurisdiction, the Company shall use its best efforts promptly to
obtain the withdrawal of such order.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the
Company (all such expenses being herein called "REGISTRATION EXPENSES"), shall
be borne as provided in this Agreement, except that the Company shall, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of
any liability insurance and the expenses and fees for listing the securities
to be registered on each securities exchange on which similar securities
issued by the Company are then listed or on the NASD automated quotation
system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration and for the reasonable
fees and disbursements of each additional counsel retained by any holder of
Registrable Securities for the purpose of rendering a legal opinion on behalf
of such holder in connection with any underwritten Demand Registration or
Piggyback Registration.
(c) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration
of such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its officers and directors and
each Person who controls such holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses (including,
without limitation, reasonable legal fees and expenses) caused by any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, if so requested by any such
Person, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to
the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall indemnify
the Company, its directors and officers and each Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses (including, without limitation, reasonable
legal fees and expenses) resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such holder; provided that the
obligation to indemnify shall be individual, not joint and several, for each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any Person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by
or on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of securities.
The Company also agrees to make such provisions, as are reasonably requested
by any indemnified party, for contribution to such party in the event the
Company's indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder
which is underwritten unless such Person (i) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved by
the Person or Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's
intended method of distribution) or to undertake any indemnification
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in paragraph 6 hereof.
8. DEFINITIONS.
(a) "INVESTOR REGISTRABLE SECURITIES" means (i) any shares
of Common Stock issued or issuable upon conversion of the Series A Preferred,
Series C Preferred or the exercise of the Series A Warrants or Bridge
Warrants, and (ii) any Common Stock issued or issuable with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
(b) "OTHER REGISTRABLE SECURITIES" means (i) any shares of
Common Stock issued or issuable upon conversion of the Series B Preferred and
any shares of Common Stock held as of the date hereof, or acquired hereafter
through the exercise of stock options held as of the date hereof, by the Other
Stockholders who are parties to this Agreement and (ii) any Common Stock
issued or issuable with respect to the securities referred to in clause (i)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
(c) "REGISTRABLE SECURITIES" means the Investor Registrable
Securities and the Other Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when they have been distributed to the public pursuant to an
offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force). For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise
of such right), whether or not such acquisition has actually been effected,
and such Person shall be entitled to exercise the rights of a holder of
Registrable Securities hereunder.
(d) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Series C Purchase
Agreement.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company shall not take any action, or permit any change to occur, with respect
to its securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision
of this Agreement shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon
the prior written consent of the Company and (i) ZAM (so long as ZAM and its
Affiliates are collectively the holders of at least fifty percent (50%) of the
shares of Series C Preferred purchased by ZAM under the Series C Purchase
Agreement); provided that, if any such amendment, modification or waiver will
have an adverse effect on ZAM, ZAM (so long as ZAM and its Affiliates are
collectively the holders of at least twenty-five percent (25%) of the shares
of Series C Preferred purchased by ZAM under the Series C Purchase Agreement),
or, if ZAM fails to meet such test, the holders of not less than fifty-one
percent (51%) of the then outstanding Series C Preferred, and (ii) the holders
of at least 60% of the then outstanding shares of Underlying Common Stock (as
such term is defined in the Series A Purchase Agreement); provided that, if
such modification, amendment or waiver would adversely affect a holder or
group of holders of Registrable Securities in a manner different than any
other holder or groups of holders of Registrable Securities, then such
modification, amendment or waiver will require the consent of such holder of
Registrable Securities or a majority of the Registrable Securities held by
such group of holders adversely affected. The failure of any party to enforce
any of the provisions of this Agreement shall in no way be construed as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable
Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts (any one of which may be by
facsimile), any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(i) GOVERNING LAW. THE CORPORATE LAW OF THE COMPANY'S STATE
OF INCORPORATION SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE
RIGHTS AND OBLIGATIONS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES
AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR
PROVISIONS (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
(j) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or sent by facsimile transmission (confirmed
by the facsimile operator). Such notices, demands and other communications
shall be sent to each holder of Registrable Securities at the address and/or
facsimile number indicated in the Company's records and to the Company at the
address and/or facsimile number indicated below:
Xando, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Co-Chief Executive Officer
Facsimile Number: (000) 000-0000
or to such other address and/or facsimile number or to the attention of such
other person as the recipient party has specified by prior written notice to
the sending party.
(k) JOINDER. Any purchaser of Registrable Securities may
become a party to this Agreement upon execution and delivery of a joinder
agreement between such purchaser, each Initiating Holder and the holders of at
least a majority of the Other Registrable Securities.
IN WITNESS WHEREOF, the parties have executed this
Registration Agreement as of the date first written above.
XANDO, INCORPORATED
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Its:
-------------------------------------
ZIFF ASSET MANAGEMENT, L.P.
By: PBK HOLDINGS, INC.
Its: General Partner
By:/s/ Xxxx X. Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxx, Treasurer
LBJ CAPITAL, L.P.
By: TEXAS BROADCASTING COMPANY, LLC
Its: General Partner
By:/s/ Xxxxx X. XxXxxxx III
---------------------------------------
Its
---------------------------------------
TALON OPPORTUNITY FUND, L.P.
By: Talon Partnership Management, LLC
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxx, a Member
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
CHANCELLOR PRIVATE CAPITAL
PARTNERS III, L.P.
By: CPCP Associates, L.P.
Its: General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its:
-------------------------------------
CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS II, L.P.
By: CPCO Associates II, L.P.
Its: General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its:
-------------------------------------
CITIVENTURE 96 PARTNERSHIP, L.P.
By: INVESCO Private Capital, Inc.
as its Investment Manager and
Attorney-in-Fact
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its:
-------------------------------------
CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS I, C.V.
By: Chancellor KME IV Partner, L.P.
Its: General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its:
-------------------------------------
XXXXXX TRUST
UNDER THE AMENDED AND RESTATED
AGREEMENT
DATED OCTOBER 25, 1993
By:/s/ Xxxxxx Xxxxx
-------------------------------------
Its:
-------------------------------------
HANDY FAMILY PARTNERSHIP LTD.
By:/s/ Xxxxxx Xxxxx
------------------------------------
Its:
------------------------------------
/s/ Xxx X. Xxxxxxxx
----------------------
Xxx X. Xxxxxxxx
XXXXXXXX STREET PARTNERS
By:
Its:
By:/s/ Xxxxxxx Strennetz
-----------------------------------
Its:
-----------------------------------
XXXXXXXX STREET PARTNERS 1998 DIF, LLC
By:
Its:
By:/s/ Xxxxxxx Strennetz
------------------------------------
Its:/s/ WSK
------------------------------------
/S/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
SZ INVESTMENTS, L.L.C.
By:
-------------------------------------
Its:
-------------------------------------
JDS PARTNERS
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Its:
-------------------------------------
/S/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
/S/ Xxxxxxxx Xxxxx
---------------------------------------
Xxxxxxxx Xxxxx
/S/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
/S/ Creed Ford, III
---------------------------------------
Creed Ford, III
/S/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
/S/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
/S/ Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Learner
/s/ Xxxxxx Learner
-----------------------------------------
Xxxxxx Learner
/s/ Xxxxxxx Learner
-----------------------------------------
Xxxxxxx Learner
/s/ Xxxxx X. XxXxxxx, III
-----------------------------------------
Xxxxx X. XxXxxxx, III
/S/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
SCHEDULE A
TO AMENDED AND RESTATED
REGISTRATION AGREEMENT
LIST OF INVESTING STOCKHOLDERS
NAME AND ADDRESS INITIAL NUMBER OF INVESTOR
REGISTRABLE SECURITIES
--------------------------------------------------- --------------------------
Ziff Asset Management, L.P.
c/o Ziff Brothers Investments
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx 1,397,059
Fax: 000-000-0000
Talon Opportunity Fund, L.P. 736,991
LBJ Capital, L.P. 235,295
Xxxxxx Xxxxxxx 15,385
Xxxxxx Xxxxxxxxx 7,692
Xxxxx Xxxxxxx Xxxxxxxx 7,692
Xxxxxxxx Xxxxxxx (and Xxxxx Xxxxxx c/o Xxxxxxxx
Xxxxxxx) 11,314
Xxxx Xxxxxxx 11,314
Xxxxxxx Xxxxxxx 11,314
Xxxxxxx Xxxxx 3,846
Xxxxxxx Xxxxx 1,539
each of the above c/o:
Talon Asset Management, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Chancellor Private Capital Partners III, L.P. 120,697
Chancellor Private Capital Offshore Partners II, L.P. 198,953
Chancellor Private Capital Offshore Partners I, C.V. 16,181
Citiventure 96 Partnership, L.P. 459,981
each of the above c/o:
INVESCO Private Capital, Inc.
As Investment Manager
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: 000-000-0000
A-1
NAME AND ADDRESS INITIAL NUMBER OF INVESTOR
REGISTRABLE SECURITIES
--------------------------------------------------- --------------------------
Xxxxxx Trust Under the Amended and Restated 15,385
Agreement dated October 25, 1993
Handy Family Partnership, Ltd. 7,692
each of the above c/o:
The Sun Valley Company
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Fax: 000-000-0000
Xxx X. Xxxxxxxx 67,873
c/o Equity Group Investments
0 Xxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Xxxxxxxx Street Partners 15,839
Xxxxxxxx Street Partners 1998 DIF, LLC 6,790
each of the above c/o:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Fax: 000-000-0000
Xxxxx Xxxxxxxxx 15,385
SZ Investments, LLC 165,160
each of the above c/o:
SZ Investments, LLC
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Fax: 000-000-0000
A-2
SCHEDULE B
TO AMENDED AND RESTATED
REGISTRATION AGREEMENT
LIST OF OTHER STOCKHOLDERS
INITIAL NUMBER OF INVESTOR
NAME AND ADDRESS REGISTRABLE SECURITIES
-------------------------------------------------- --------------------------
Xxxxxx Xxxxxxxx 617,292
Xxxxxxxx Xxxxx 617,292
Xxxxx Xxxxxxx 438,462
Creed Ford, III 470,590
Xxxxxxx X. Xxxxx 782,550
JDS Partners 491,550
Xxx Xxxxxxx 190,385
Xxxxxxx Xxxxx 73,800
each of the above c/o:
Xando, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax: 000-000-0000
Xxxxx Learner 3,556
Xxxxxx Learner 3,556
Xxxxxxx Learner 3,556
each of the above c/o:
Xxxxxxx Learner
0000 Xxxxx Xxxxxxxxx, Xxxx X
Xxxxxxx, Xxxxxxxx 00000
B-1
