EXHIBIT 4.2
FRESH ENTERPRISES, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated as of October 2, 2001
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------
This Amended and Restated Registration Rights Agreement (the
"Agreement") dated as of this 2/nd/ day of October, 2001 amends and restates
---------
that certain Fresh Enterprises, Inc. Registration Rights Agreement dated as of
November 24, 1998 (as previously amended, the "Registration Rights Agreement")
by and among FRESH ENTERPRISES, INC., a California corporation (the "Company")
-------
and the entities and individuals listed on Schedule A attached hereto
----------
(collectively referred to herein as the "Purchasers" and individually as a
----------
"Purchaser").
---------
RECITALS
--------
WHEREAS, the Company issued and sold an aggregate of 2,727,941 shares
of Series A Convertible Preferred Stock pursuant to that certain
Recapitalization Agreement dated as of October 12, 1998 (the "Recapitalization
Agreement");
WHEREAS, the Company issued and sold an aggregate of 2,153,507 shares
of Series B Convertible Preferred Stock pursuant to that certain Stock Purchase
Agreement dated as of April 28, 2000;
WHEREAS, the Board of Directors of the Company and the Shareholders of
the Company have authorized the creation and issuance of up to 1,351,405 shares
of Series C Convertible Preferred Stock, which shall be sold to the Purchasers
pursuant to that certain Stock Purchase Agreement dated as of the date hereof
(the "Stock Purchase Agreement");
WHEREAS, the Company and the Purchasers desire to amend and restate
the Registration Rights Agreement in connection with the sale and issuance of
the Series C Convertible Preferred Stock in order to include the holders of such
stock herein;
WHEREAS, Section 10(c) of the Registration Rights Agreement permits
the Company, upon the written consent of the holders of at least 50% of the
outstanding Registrable Securities, to amend the Registration Rights Agreement
and the Purchasers executing a counterpart hereof represent holders of more than
50% of the outstanding Registrable Securities.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1. Definitions.
-----------
As used in this Agreement, and unless the context requires a different
meaning, the following terms shall have the meanings indicated:
1
"Agent" means any Person authorized to act and who acts on behalf of
-----
any holder of Registrable Securities with respect to the transactions
contemplated by this Agreement or the Stock Purchase Agreement.
"Agreement Year" means each consecutive twelve-month period beginning
--------------
with the date of this Agreement.
"Business Days" means all days other than Saturday or Sunday or any
-------------
day on which banking institutions in New York, New York are authorized or
obligated by law to close.
"Common Stock" means capital stock of the Company, however designated,
------------
which is not limited as to the amount of dividends, or which is not limited as
to the amount of distributions upon liquidation or dissolution of the Company,
and shall include, without limitation, the Company's presently authorized
15,000,000 shares of Common Stock, no par value.
"Demand Registration" means a registration pursuant to Section 3(b).
-------------------
"Exchange Act" means the Securities Exchange Act of 1934, and the
------------
rules and regulations thereunder as amended from time to time.
"Existing Common Shares" means shares of Common Stock outstanding on
----------------------
the date hereof, and all Option Shares and Restricted Shares.
"NASD" means National Association of Securities Dealers, Inc.
----
"Option Shares" means any shares of Common Stock issued pursuant to
-------------
the exercise of options issued by the Company to Gregory G. Dollarhyde, Louis A.
Siracusa or Donald D. Breen.
"Person" means an individual, firm, partnership, corporation, trust,
------
incorporated or unincorporated association, joint venture, joint stock company
or a government or agency or political subdivision thereof.
"Piggy-Back Registration" means a registration pursuant to Section
-----------------------
3(f).
"Prospectus" means the prospectus included in any Registration
----------
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Preferred Stock" means the Series A Stock, the Series B Stock, and
---------------
the Series C Stock.
"Priority Demand Registration" means a registration pursuant to
----------------------------
Section 3(a).
2
"Registrable Securities" means: (a) all shares of Common Stock owned
----------------------
now or in the future by any Purchaser; (b) the shares of Common Stock issued or
issuable upon conversion of the Preferred Stock, whether owned by any Purchaser
or not; and (c) any shares of Common Stock issued or issuable with respect to
such Common Stock by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
reorganization; provided, however, that any such share or other security shall
-------- -------
be deemed to be a Registrable Security only if and so long as it is a Transfer
Restricted Security; provided further that in the case of a Demand Registration
-------- -------
pursuant to Section 3(b), a Piggy-Back Registration pursuant to Section 3(f) or
an S-3 Registration pursuant to Section 3(g), Registrable Securities shall also
include all Existing Common Shares.
"Registration Expenses" See Section 6 hereof.
---------------------
"Registration Statement" means any registration statement of the
----------------------
Company which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
"Restricted Shares" shall mean any shares of Common Stock issued to
-----------------
Mr. Dollarhyde or Mr. Siracusa pursuant to a restricted stock agreement other
than those shares that are unvested.
"S-3 Registration" means a registration pursuant to Section 3(g).
----------------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"SEC" means the Securities and Exchange Commission.
---
"Series A Stock" means the Series A Convertible Preferred Stock of the
--------------
Company, without par value, issued or sold pursuant to the Recapitalization
Agreement, or issued by way of stock dividend or stock split in respect thereof,
together with any securities issued in substitution or exchange therefor.
"Series B Stock" means the Series B Convertible Preferred Stock of the
--------------
Company, without par value, issued or sold pursuant to the Stock Purchase
Agreement dated April 28, 2000, or issued by way of stock dividend or stock
split in respect thereof, together with any securities issued in substitution or
exchange therefor.
"Series C Stock" means the Series C Convertible Preferred Stock of the
--------------
Company, without par value, issued or sold pursuant to the Stock Purchase
Agreement dated October 2, 2001, or issued by way of stock dividend or stock
split in respect thereof, together with any securities issued in substitution or
exchange therefor.
"Shareholders' Agreement" shall mean that certain Amended and Restated
-----------------------
Shareholders' Agreement dated as of the date hereof, between the Company and the
holders of the capital stock of the Company.
3
"Transfer Restricted Securities" means securities acquired by the
------------------------------
holder thereof other than pursuant to an effective registration under Section 5
of the Securities Act or pursuant to Rule 144; provided that a Registrable
Security that has ceased to be a Transfer Restricted Security cannot thereafter
become a Transfer Restricted Security.
"Underwritten Registration or Underwritten Offering" means a
--------------------------------------------------
registration in which securities of the Company are sold (whether by the Company
or by selling stockholders) to an underwriter for reoffering to the public.
2. Securities Subject to this Agreement.
------------------------------------
The securities entitled to the benefits of this Agreement are the
Registrable Securities.
(a) Holders of Registrable Securities. A Person is deemed to be a
---------------------------------
holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether or
not such acquisition has actually been effected and disregarding the legal
restrictions upon the exercise of such right; provided, however, that a Person
-------- -------
shall not be deemed to be a holder of Registrable Securities who, together with
such Person's affiliates, then holds Registrable Securities constituting less
than three percent (3%) of the then issued and outstanding Common Stock and who
may then sell all Registrable Securities owned by such holder in reliance upon
Rule 144 of the Securities Act within six months pursuant to the volume
restrictions under said Rule based upon the average weekly reported trading
volume of trading (currently Rule 144(e)(1)(ii)).
3. Priority Demand Registration, Demand Registration, Piggy-Back
-------------------------------------------------------------
Registration and S-3 Registration.
- ---------------------------------
(a) Priority Demand Registration. At any time after the earlier
----------------------------
to occur of (i) the last day of the third Agreement Year or (ii) six (6) months
after the effective date of the initial public offering of any of the Company's
securities, if the Company receives from the holders of at least 60% of the then
outstanding Registrable Securities, a written request that the Company effect
any registration or qualification of Registrable Securities that, at the time
the request is made, it is reasonably expected that such registration or
qualification will result in gross proceeds of at least $10,000,000, the Company
will:
(1) within ten (10) days of receipt of such a request, give
written notice of the proposed registration or qualification to all other
holders of Registrable Securities; and
(2) as soon as practicable, effect such registration or
qualification (including, without limitation, the execution in the applicable
Registration Statement of an undertaking to file required post-effective
amendments, appropriate qualification under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as are reasonably necessary to permit or
facilitate the sale
4
and distribution of all or such portion of such holder's or holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other holder or holders joining in such
request, or the Company in the case of securities requested by the Company to be
registered (provided, however, the Company shall be permitted to participate in
-------- -------
such registration only to the extent that all Registrable Securities as are
specified by any holder in a Priority Demand Registration request have been
included in such registration), as are specified in a written notice given to
the Company within 20 days after the date of such written notice from the
Company pursuant to Section 3(a)(1); provided, however that the Company will not
-------- -------
be obligated to take any action to effect any such registration, qualification
or compliance pursuant to this Section 3(a) after the completion of one (1)
Priority Demand Registration as set forth in Section 3(c).
Subject to the foregoing provisions, the Company will file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, but in any event within one hundred twenty
(120) days, after receipt of the request or requests of the initiating holders,
and shall use its best efforts to cause such Registration Statement and
Prospectus through which such Priority Demand Registration is effected to remain
effective until the earlier of: (i) two years from the effective date or (ii)
all Registrable Securities are sold or withdrawn by the participating holders.
(b) Demand Registration. At any time after the earlier to occur of
-------------------
(i) the last day of the third Agreement Year or (ii) six (6) months after the
effective date of the initial public offering of any of the Company's
securities, if the Company receives from the holders of at least 30% of the
then-outstanding Registrable Securities, other than holders of Existing Common
Shares, (or, if at the time of such request, the Company has not yet been
declared effective on a registration statement for the initial public offering
of its Common Stock, holders of at least 60% of the then-outstanding Registrable
Securities), a written request that the Company effect any registration or
qualification with respect to the Registrable Securities, the Company will:
(1) within ten (10) days of receipt of such a request, give
written notice of the proposed registration or qualification to all other
holders of Registrable Securities; and
(2) as soon as practicable, effect such registration or
qualification (including, without limitation, the execution in the applicable
Registration Statement of an undertaking to file required post-effective
amendments, appropriate qualification under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as are reasonably necessary to permit or
facilitate the sale and distribution of all or such portion of such holder's or
holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other holder or holders
joining in such request, or the Company in the case of securities requested by
the Company to be registered (provided, however, the Company and the holders of
-------- -------
Existing Common Shares shall be permitted to participate in such registration
only to the extent that all Registrable Securities (other than Existing Common
Shares) as are specified by any holder in a Demand Registration request have
been included in such registration), as are specified in a written
5
notice given to the Company within 20 days after the date of such written notice
from the Company pursuant to Section 3(b)(1); provided, however that the Company
-------- -------
will not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 3(b) after the completion
of two (2) Demand Registrations as set forth in Section 3(c).
Subject to the foregoing provisions, the Company will file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, but in any event within one hundred twenty
(120) days, after receipt of the request or requests of the initiating holders,
and shall use its best efforts to cause such Registration Statement and
Prospectus through which such Demand Registration is effected to remain
effective until the earlier of: (i) two years from the effective date or (ii)
the date on which all Registrable Securities are sold or withdrawn by the
participating holders.
(c) Effective Registration. A registration of Registrable
----------------------
Securities pursuant to Section 3 will not count as a Priority Demand
Registration or Demand Registration until it has become effective and all
Registrable Securities included in such Demand Registration have been sold or
withdrawn by the participating holders pursuant thereto.
(d) Inclusion of Shares in Priority Demand Registration and
-------------------------------------------------------
Demand Registrations. If the holder or holders of a majority in number of the
- --------------------
Registrable Securities to be registered in a Priority Demand Registration or
Demand Registration under this Section 3 so elect, the offering of such
Registrable Securities pursuant to such Priority Demand Registration or Demand
Registration shall be in the form of an Underwritten Offering. In such event, if
the managing underwriter or underwriters of such offering advise the Company and
the holders in writing that in their opinion the Registrable Securities
requested to be included in such offering is sufficiently large so as to
materially and adversely affect the success of the offering, the Company shall
include in such registration the maximum amount of Registrable Securities which
in the opinion of such managing underwriter or underwriters can be sold without
any such material adverse effect. The Company shall include Registrable
Securities in such registration as follows: (i) first, pro rata among the
holders of Registrable Securities who have requested to be included in such
registration pursuant to Section 3(a) or 3(b) (provided that, in the case of a
registration pursuant to Section 3(b), no Existing Common Shares shall be
entitled to be included unless all other Registrable Securities requesting to
participate shall have been included in such registration); (ii) second, all
securities held by the Company for which the Company has requested inclusion
pursuant to Section 3(a) or 3(b); and (iii) third, any other holders of
securities of the Company who have requested to be included in such registration
statement.
(e) Selection of Underwriters. The investment banker or bankers
-------------------------
and manager or managers that will administer the offering will be nationally
recognized investment banking firm(s) selected by the Company with the prior
written consent of the holders of a majority in number of Registrable Securities
to be included in such offering, such consent not to be unreasonably withheld or
delayed.
(f) Piggy-Back Registration. If the Company determines to file a
-----------------------
registration statement under the Securities Act relating to a proposed sale to
the public of shares of its securities (but excluding registrations relating
solely to debt securities, employees' stock
6
option or purchase plans or a transaction employing Securities and Exchange
Commission Form S-4 or Form S-8 or successor forms thereto), either for its own
account or the account of a security holder or holders, the Company shall:
(1) promptly give to each holder of Registrable Securities
written notice thereof (which will include, to the extent known at the time, a
list of the jurisdictions in which the Company intends to qualify such
securities under the applicable blue sky or other state securities laws, the
proposed offering price or price range, and the plan of distribution);
(2) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within forty-five (45) days after such written notice from the
Company, by holders of Registrable Securities; and
(3) use its best efforts to cause the managing underwriter
or underwriters of such proposed Underwritten Offering to permit the Registrable
Securities requested to be included in the registration statement for such
offering to be included on the same terms and conditions as any similar
securities of the Company included therein. Notwithstanding the foregoing, if
the managing underwriter or underwriters of such offering deliver a written
opinion to the Company and the holders of such Registrable Securities that
marketing considerations require a limitation on the number of shares of Common
Stock offered pursuant to any Registration Statement filed under this Section
3(f), such limitation shall be imposed pro rata among all holders of Registrable
Securities who requested inclusion in the registration.
(g) Request for Registration on Form S-3 by Holders of
--------------------------------------------------
Registrable Securities. Subject to Section 5(c) of the Shareholders' Agreement,
- ----------------------
at any time after the Company becomes eligible to file a Registration Statement
on Form S-3, if the Company receives from any holders of at least 20% of the
then outstanding Registrable Securities (other than holders of Existing Common
Shares), a written request that the Company effect any registration or
qualification with respect to the Registrable Securities, the Company will:
(1) within ten (10) days of receipt of such a request, give
written notice of the proposed registration or qualification to all other
holders of Registrable Securities; and
(2) as soon as practicable, effect such registration or
qualification (including, without limitation, the execution in the applicable
Registration Statement of an undertaking to file required post-effective
amendments, appropriate qualification under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as are reasonably necessary to permit or
facilitate the sale and distribution of all or such portion of such holder's or
holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other holder or holders
joining in such request, or the Company in the case of securities requested by
the Company to be registered (provided, however, the Company and the holders of
-------- -------
Existing
7
Common Shares shall be permitted to participate in such registration only if all
Registrable Securities (other than Existing Common Shares) as are specified by
any holder in an S-3 Registration request have been included in such
registration), as are specified in a written notice given to the Company within
20 days after the date of such written notice from the Company pursuant to
Section 3(g)(1).
Subject to the foregoing provisions, the Company will file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, but in any event within one hundred twenty
(120) days, after receipt of the request or requests of the initiating holders,
and shall use its best efforts to cause such Registration Statement and
Prospectus through which such S-3 Registration is effected to remain effective
until all Registrable Securities are sold.
A registration of Registrable Securities will not count as an S-3
Registration until it has become effective and all Registrable Securities
included in such S-3 Registration have been sold or withdrawn by the
participating holders pursuant thereto.
4. Hold-Back Agreements.
--------------------
(a) Restrictions on Public Sale by the Holders of Registrable
---------------------------------------------------------
Securities. Each holder of Registrable Securities whose Registrable Securities
- ----------
are covered by a Registration Statement filed pursuant to Section 3 hereof
agrees not to effect any public sale or distribution of securities of the
Company of the same class as the securities included in such Registration
Statement, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such Underwritten Registration), during the one hundred
eighty (180) day period (or such other time period as shall be reasonably agreed
upon by the Company, the holders of the Registrable Securities whose Registrable
Securities are covered by such registration and the managing underwriters)
subsequent to the filing of the Registration Statement for each Underwritten
Offering pursuant to such Registration Statement and during such other period
(not less than one hundred eighty 180 days) following such effective date as
shall be reasonably agreed upon by the Company, the holders of the Registrable
Securities whose Registrable Securities are covered by such registration and the
managing underwriters.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement; provided that any such holder shall undertake,
--------
in its request to participate in any such Underwritten Offering, not to effect
any public sale or distribution of the applicable class of Registrable
Securities commencing on the date of sale of such applicable class of
Registrable Securities unless it has provided 45 days' prior written notice of
such sale or distribution to the underwriter or underwriters.
(b) Restrictions on Public Sale by the Company and Others. The
-----------------------------------------------------
Company agrees:
(1) not to effect any public or private sale or distribution
of its debt or equity securities, including a sale pursuant to Regulation D
under the Securities Act,
8
during the one hundred eighty (180) day period prior to the filing of a
Registration Statement under Section 3 hereof, and during the one hundred eighty
(180) day period (or such other time period as shall be reasonably agreed upon
by the Company, the holders of the Registrable Securities whose Registrable
Securities are covered by such registration and the managing underwriters)
beginning on the closing date of each Underwritten Offering made pursuant to a
Registration Statement filed under Section 3 hereof, to the extent timely
requested in writing by the managing underwriters (except as part of such
Underwritten Registration or pursuant to registrations on Forms S-4 or S-8 or
any successor forms thereto), and
(2) to cause (i) each officer and director of the Company
and (ii) each holder of securities issued by the Company to agree not to effect
any public sale or distribution of any privately placed debt or equity
securities of the Company, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such Underwritten Registration, if permitted),
during the one hundred eighty (180) day period subsequent to the filing of the
Registration Statement for each Underwritten Offering and during the one hundred
eighty (180) day period following the effective date of such Registration
Statement, in each case to the extent the managing underwriter makes a timely
written request that specifically identifies such holder(s).
5. Registration Procedures.
-----------------------
In connection with the Company's registration obligations pursuant to
Section 3 hereof, the Company will use its best efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the holders of the Registrable
Securities covered by such Registration Statement and the managing underwriters,
if any, copies of all such documents proposed to be filed, which documents will
be made available for review by such holders and managing underwriters, and the
Company will not file any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the holders of a majority in
number of the Registrable Securities covered by such Registration Statement or
the underwriters, if any, shall reasonably object;
(b) prepare and file with the Securities and Exchange Commission
such amendments and post-effective amendments to any Registration Statement, and
such supplements to the Prospectus, as may be reasonably requested by any
holders of a majority of Registrable Securities covered by the Registration
Statement or any managing underwriter of Registrable Securities or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Securities Act or otherwise
necessary to keep such Registration Statement effective for the applicable
period and cause the Prospectus as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of
9
disposition by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(c) notify the counsel to the selling holders of Registrable
Securities and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such advice in writing,
(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective,
(2) of any request by the Securities and Exchange Commission
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose,
(4) if at any time the representations and warranties of the
Company contemplated by paragraph (n) below cease to be true and correct,
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and
(6) of the existence of any fact which results in the
Registration Statement, the Prospectus or any document incorporated therein by
reference containing an untrue statement of material fact or omitting to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(d) use every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if reasonably requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in connection with
an Underwritten Offering, immediately incorporate in a Prospectus supplement or
post-effective amendment such necessary information as the managing underwriters
and the holders of a majority of the Registrable Securities being sold
reasonably request to have included therein relating to the plan of distribution
with respect to such Registrable Securities, including, without limitation,
information with respect to the amount of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
10
(f) at the request of any selling holder of Registrable
Securities, furnish to such selling holder of Registrable Securities and each
managing underwriter, without charge, such number of conformed copies of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) as such
holder may reasonable request;
(g) deliver to each selling holder of Registrable Securities and
the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the selling holders
of Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of Registrable
Securities, the managing underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as any seller or underwriter reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends unless required by applicable law; and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriters may request at least two business days prior
to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(k) if any fact contemplated by paragraph (c)(6) above shall
exist during the period that the Company shall be required hereunder to use its
best efforts to maintain the effectiveness of the applicable Registration
Statement, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
11
(l) use its best efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each securities exchange
on which similar securities issued by the Company are then listed if requested
by the holders of a majority in number of such Registrable Securities or by the
managing underwriters, if any;
(m) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable trustees or transfer agents with printed certificates
for the Registrable Securities which are in a form eligible for deposit with
Depositary Trust Company;
(n) enter into agreements (including underwriting agreements) in
a form reasonably satisfactory to the Company and take all other appropriate and
reasonable actions in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an Underwritten
Registration:
(1) make such representations and warranties to the holders
of such Registrable Securities and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in primary
Underwritten Offerings, in a manner reasonably satisfactory to the Company;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the counsel to
the holders of Registrable Securities being sold) addressed to each selling
holder and the underwriters, if any, covering the matters customarily covered in
opinions requested in Underwritten Offerings, in a manner reasonably
satisfactory to the Company;
(3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed to the selling
holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with primary Underwritten
Offerings;
(4) if an underwriting agreement is entered into, cause the
same to set forth in full the indemnification provisions and procedures of
Section 7 hereof (or such other substantially similar provisions and procedures
as the underwriters shall reasonably request) with respect to all parties to be
indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be
reasonably requested by the holders of a majority of the Registrable Securities
being sold and the managing underwriters, if any, to evidence compliance with
paragraph (k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
12
The actions set forth in this paragraph (n) shall be done at the
effectiveness of such Registration Statement, each closing under any
underwriting or similar agreement as and to the extent required thereunder and
from time to time as may reasonably be requested by any selling holder in
connection with the disposition of Registrable Securities pursuant to such
Registration Statement, all in a manner consistent with customary industry
practice;
(o) make available to a representative of the holders of a
majority in number of the Registrable Securities being sold, any managing
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by the sellers or managing
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with the
registration, with respect to each at such time or times as the Company shall
reasonably determine; provided that any records, information or documents that
are designated by the Company in writing as confidential shall be kept
confidential by such Persons unless disclosure of such records, information or
documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
generally available to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(q) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD); and
(r) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling holders of Registrable Securities and to the
managing underwriters, if any, make the Company's representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for such selling holders or underwriters may
reasonably request.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (k) above, such holder
will forthwith discontinue disposition of Registrable Securities until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by paragraph (k) above, or until it is advised in writing by the
Company
13
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such holder will deliver to the
Company (at the Company's expense, unless such supplement or amendment is due to
inaccurate information supplied by such holder to the Company in writing
specifically for inclusion in the applicable Registration Statement) all copies,
other than permanent file copies then in such holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event the Company shall give any such notice, the time
periods mentioned in Section 4 hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each seller of Registrable Securities covered by
such Registration Statement either receives the copies of the supplemented or
amended Prospectus contemplated by paragraph (k) above or is advised in writing
by the Company that the use of the Prospectus may be resumed.
6. Registration Expenses.
---------------------
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be paid by the Company, regardless whether
the Registration Statement becomes effective including without limitation:
(1) all registration and filing fees (including, without
limitation, with respect to filings required to be made with the NASD);
(2) fees and expenses of compliance with securities or blue
sky laws (including, without limitation, fees and disbursements of counsel for
the underwriters or selling holders in connection with blue sky qualifications
of the Registrable Securities and determination of their eligibility for
investment under the laws of such jurisdictions as the managing underwriters or
holders of a majority of the Registrable Securities being sold may designate);
(3) printing (including, without limitation, expenses of
printing or engraving certificates for the Registrable Securities in a form
eligible for deposit with Depositary Trust Company and of printing
prospectuses), messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company, the
underwriters and for the selling holders of the Registrable Securities;
(5) fees and disbursements of all independent certified
public accountants of the Company (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance);
(6) fees and disbursements of underwriters as reasonably
approved by the Company (excluding (x) discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of
14
the Registrable Securities or (y) legal expenses of any Person other than the
Company, the underwriters and the selling holders);
(7) securities acts liability insurance if the Company so
desires, and in such event, coverage for, the underwriters or selling holders of
Registrable Securities should they so request;
(8) fees and expenses associated of other Persons retained
by the Company; and
(9) fees and expenses associated with any NASD filing
required to be made in connection with the Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained in accordance with the rules
and regulations of the NASD (all such expenses being herein called "Registration
Expenses").
The Company will, 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, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Company.
(b) In connection with each Registration Statement required
hereunder, the Company will reimburse the holders of Registrable Securities
being registered (together with the holders of all other securities being
registered) pursuant to such Registration Statement for the reasonable fees and
disbursements of not more than one counsel (or more than one counsel if a
conflict exists among such selling holders in the exercise of the reasonable
judgment of counsel for the selling holders and counsel for the Company) chosen
by the holders of a majority of such Registrable Securities and such other
securities being registered under such Registration Statement.
7. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to
------------------------------
indemnify and hold harmless each holder of Registrable Securities, its officers,
directors, employees, partners, members and Agents and each Person who controls
such holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each such person being sometimes hereinafter
referred to as an "Indemnified Holder") from and against all losses, claims,
------------------
damages, liabilities and expenses (including reasonable costs of investigation
and legal expenses) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
Prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or
15
allegation thereof based upon information furnished in writing to the Company by
such holder expressly for use therein; provided, however, that the Company shall
-------- -------
not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
Prospectus if (i) such holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities and (ii) the Prospectus would have corrected such untrue statement or
omission; and provided, further, that the Company shall not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such holder thereafter fails to deliver such Prospectus
as so amended or supplemented prior to or concurrently with the sale of a
Registrable Security to the person asserting such loss, claim, damage, liability
or expense who purchased such Registrable Security which is the subject thereof
from such holder. This indemnity will be in addition to any liability which the
Company may otherwise have. The Company will also provide customary
indemnification to underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Holders of Registrable Securities.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses. Such
Indemnified Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of such Indemnified Holder unless (a) the
Company has agreed to pay such fees and expenses or (b) the Company shall have
failed to assume the defense of such action or proceeding or has failed to
employ counsel reasonably satisfactory to such Indemnified Holder in any such
action or proceeding or (c) if the representation of such Indemnified Holder by
the counsel retained by the Company would be inappropriate due to actual or
potential conflicts of interests between the Indemnified Holder and any other
party represented by such counsel in such proceeding based on written advice of
counsel made available to the Company (in which case, if such Indemnified Holder
notifies the Company in writing that it elects to employ separate counsel at the
expense of the Company, the Company shall not have the right to assume the
defense of such action or proceeding on behalf of such Indemnified Holder, it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such Indemnified Holder
and any other Indemnified Holders, which firm shall be designated in writing by
such Indemnified Holders). The
16
Company shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its written consent,
or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless such Indemnified
Holders from and against any loss or liability by reason of such settlement or
judgment.
(b) Indemnification by Holder of Registrable Securities. Each
---------------------------------------------------
holder of Registrable Securities agrees to indemnify and hold harmless the
Company, its directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such holder, but only with respect to information relating to such
holder furnished in writing by such holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary Prospectus. In case any action or proceeding shall be brought
against the Company or its directors or officers or any such controlling person,
in respect of which indemnity may be sought against a holder of Registrable
Securities, such holder shall have the rights and duties given the Company and
the Company or its directors or officers or such controlling person shall have
the rights and duties given to each holder by Section 7(a). In no event shall
the liability of any selling holder of Registrable Securities under this Section
7(b) be greater in amount than the dollar amount of the net proceeds received by
such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement or any
amendment or supplement thereto, or any preliminary Prospectus.
(c) Contribution. If the indemnification provided for in this
------------
Section 7 is unavailable to an indemnified party under Section 7(a) or Section
7(b) hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnified Holder 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, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 7(a), any
17
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company and each holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7(c)
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. Notwithstanding the provisions of this Section
7(c), an Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such Indemnified Holder or its affiliated Indemnified Holders
and distributed to the public were offered to the public exceeds the amount of
any damages which such Indemnified Holder, or its affiliated Indemnified
Holders, has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Rule 144.
--------
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder and, at all times after the effective
date of the first registration filed by the Company which involves a sale of
securities of the Company to the general public, will take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such information and requirements.
9. Participation in Underwritten Registrations.
-------------------------------------------
No holder of Registrable Securities (or its successors or assigns) may
participate in any Underwritten Registration hereunder unless such Person (a)
agrees to sell such Person's Registrable Securities on the basis provided in any
underwriting arrangements approved by the underwriters and other Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. Miscellaneous.
-------------
(a) Remedies. Each holder of Registrable Securities, in addition
--------
to being entitled to exercise all rights provided herein and granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss
18
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after
--------------------------
the date of this Agreement enter into any agreement, and as of the date of this
Agreement the Company is not a party to any agreement, with respect to its
securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof or impairs the rights granted hereunder. The Company has not
previously entered into any agreement with respect to its securities granting
any registration rights to any Person which has not been terminated on or prior
to the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of holders
of at least 50% of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other holders of Registrable
Securities may be given by the holders of 50% of the Registrable Securities
being sold.
(d) Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of this Section 10(d) (with the initial addresses for each person
which the Purchaser comprises as set forth in the Recapitalization Agreement, or
if a party to the Stock Purchase Agreement, as set forth therein, and with
copies to be sent as specified in the Recapitalization Agreement or Stock
Purchase Agreement); and
(2) if to the Company, initially at its address set forth in
the Stock Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 11(e), with
copies to be sent as specified in the Stock Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when received if
deposited in the mail, postage prepaid, if mailed; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation, and without the need for an express
assignment, subsequent holders of Registrable Securities.
19
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California.
(i) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties
----------------
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings as to the subject matter, other than those
set forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Preferred Stock. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
[signature pages follow]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRESH ENTERPRISES, INC.
By: /s/ Gregory G. Dollarhyde
________________________________________
Gregory G. Dollarhyde
President
CATTERTON PARTNERS IV, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
________________________________________
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV-A, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
________________________________________
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV-B, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
21
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
____________________________________________
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV OFFSHORE, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
Its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
____________________________________________
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV SPECIAL PURPOSE, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
Its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
____________________________________________
Frank M. Vest Jr.
Authorized Person
CATTERTON-SIMON PARTNERS III, L.P.,
a Delaware limited partnership
By: Catterton-Simon Managing Partner III, L.L.C.
Its General Partner
By: /s/ Frank M. Vest Jr.
____________________________________________
Frank M. Vest Jr.
Authorized Person
22
CATTERTON-BAJA PARTNERS, L.L.C.,
a Delaware limited liability company
By: Catterton Partners IV Management
Company, L.L.C.
Its Managing Member
By: /s/ Frank M. Vest Jr.
_______________________________________
Frank M. Vest Jr.
Authorized Person
GRUMMAN HILL INVESTMENTS III, L.P.,
a Delaware limited partnership
By: Grumman Hill Group, L.L.C.
Its General Partner
By: /s/ James T. Kelsey
_______________________________________
James T. Kelsey
Authorized Person
OAK INVESTMENT PARTNERS VIII, L.P.,
a Delaware limited partnership
By: /s/ Gerald R. Gallagher
_______________________________________
Gerald R. Gallagher
Managing Member,
Oak Associates VIII, LLC,
The General Partner of Oak Investment
Partners VIII, Limited Partnership
OAK VIII AFFILIATES FUND, L.P.,
a Delaware limited partnership
By: /s/ Gerald R. Gallagher
_______________________________________
Gerald R. Gallagher
Managing Member,
Oak Associates VIII, LLC,
23
The General Partner of Oak VIII
Affiliates Fund, Limited
Partnership
/s/ Steven Lebow
________________________________________
STEVEN LEBOW
/s/ Gregory G. Dollarhyde
________________________________________
GREGORY G. DOLLARHYDE
/s/ Donald D. Breen
________________________________________
DONALD D. BREEN
/s/ Louis A. Siracusa
________________________________________
LOUIS A. SIRACUSA
THE LOUIS A. SIRACUSA SEPARATE PROPERTY
TRUST
/s/ Louis A. Siracusa
By: ___________________________________
Louis A. Siracusa
Trustee
/s/ James Magglos
________________________________________
JAMES MAGGLOS
24
/s/ Linda Magglos
_________________________________
LINDA MAGGLOS
/s/ John Yonkich
_________________________________
JOHN YONKICH
/s/ Coralee Yonkich
_________________________________
CORALEE YONKICH
/s/ Wolfe H. Bragin
_________________________________
WOLFE H. BRAGIN
/s/ Patrick J. McNeela
_________________________________
PATRICK J. MCNEELA
/s/ Cyrus Monroe
_________________________________
CYRUS MONROE
/s/ Jill Monroe
_________________________________
JILL MONROE
25
JKG ENTERPRISE GROUP MONEY PURCHASE
PENSION PLAN FBO GREG DOLLARHYDE
/s/ Gregory G. Dollarhyde
By:_____________________________________
Gregory G. Dollarhyde
Trustee
THE HARRY AND JUDITH KEYS FAMILY TRUST
/s/ Harry E. Keys
By:_____________________________________
Harry E. Keys
Trustee
/s/ Judith A. Keys
By:_____________________________________
Judith A. Keys
Trustee
DAVE & DIANE LIVING TRUST
/s/ Dave Johnson
By:_____________________________________
Dave Johnson
Trustee
/s/ Diane D. Johnson
By:_____________________________________
Diane D. Johnson
Trustee
26
Schedule A
----------
Catterton-Simon Partners III, L.P.
Catterton Partners IV, L.P.
Catterton Partners IV-A, L.P.
Catterton Partners IV-B, L.P.
Catterton Partners IV Offshore, L.P.
Catterton Partners IV Special Purpose, L.P.
Catterton-Baja Partners, L.L.C.
Grumman Hill Investments III, L.P.
Oak Investments Partners VIII, L.P.
Oak VIII Affiliates Fund, L.P.
Steven Lebow
Gregory G. Dollarhyde
Gregory G. Dollarhyde, Trustee, JKG Enterprise Group Money Purchase Pension Plan
FBO Greg Dollarhyde
Louis A. Siracusa
Louis A. Siracusa Separate Property Trust
James and Linda Magglos
John and Coralee Yonkich
Wolfe H. Bragin
Patrick J. McNeela
The Harry and Judith Keys Family Trust
Dave & Diane Johnson Living Trust
Cyrus and Jill Monroe
Donald D. Breen
27
AMENDMENT NO. 1
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of April 19, 2002 (this "Amendment"), amends that certain Amended and
---------
Restated Registration Rights Agreement dated as of October 2, 2001 (the
"Registration Rights Agreement"), among Fresh Enterprises, Inc., a California
-----------------------------
corporation (the "Company"), and the entities and individuals listed on Schedule
-------
A to the Registration Rights Agreement (collectively, the "Purchasers"), and is
----------
made and entered into with reference to the following facts (all capitalized
terms not otherwise defined herein have the respective meanings assigned to them
in the Registration Rights Agreement):
WHEREAS, the Registration Rights Agreement provides that demand
registration and priority demand registration rights may be exercised upon the
earlier to occur of (i) the last day of the third Agreement Year or (ii) six (6)
months after the effective date of the initial public offering of any of the
Company's securities;
WHEREAS, the Company and the undersigned Purchasers believe that the intent
of the parties to the Registration Rights Agreement was to provide for the
availability of demand registration and priority demand registration rights
beginning on the last day of the third Agreement Year measured from the date of
the original Registration Rights Agreement dated November 24, 1998;
WHEREAS, the Company and the undersigned Purchasers have therefore
determined to amend the Registration Rights Agreement to redefine Agreement
Year;
WHEREAS, Section 10(c) of the Registration Rights Agreement permits the
Company, with the written consent of the holders of at least 50% of the
outstanding Registrable Securities, to amend the Registration Rights Agreement,
and the Purchasers executing a counterpart hereof constitute the holders of more
than 50% of the outstanding Registrable Securities.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1. Amendment to Registration Rights Agreement. The definition of
------------------------------------------
"Agreement Year" in Section 1 is hereby amended in its entirety to read as
follows:
"Agreement Year means each consecutive twelve-month period beginning
--------------
on November 24, 1998."
2. Jurisdiction and Integration. This Amendment shall be governed by and
----------------------------
construed in accordance with the laws of the State of California, without regard
to the principles of conflicts of law of such state. This Amendment, together
with the Registration Rights Agreement, contains the entire understanding
between the parties hereto relating to the subject matter hereof and supersedes
any prior understandings and agreements, whether oral or written, among the
parties respecting such subject matter.
1
3. Binding Agreement; Counterparts. This Amendment shall be binding upon
-------------------------------
the parties hereto, their successors, assigns and legal representatives. This
Amendment may be executed in several counterparts, all of which together shall
constitute one and the same agreement, binding on all of the parties,
notwithstanding that all of the parties are not signatories to the original or
same counterparts.
4. Full Force and Effect. Except as expressly amended by this Amendment,
---------------------
the Registration Rights Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used in the Registration Rights
Agreement, "hereinafter," "hereto," "hereof," and other words of similar import
shall, unless the context otherwise requires, mean the Registration Rights
Agreement as amended by this Amendment. In the event of any conflict or
inconsistency between the terms and conditions of the Registration Rights
Agreement and the terms and conditions of this Amendment, the terms and
conditions of this Amendment shall control.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
FRESH ENTERPRISES, INC.
By: /s/ Gregory G. Dollarhyde
-----------------------------------------
Gregory G. Dollarhyde
President
CATTERTON PARTNERS IV, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
-----------------------------------------
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV-A, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
By: CP4 Principals, L.L.C.,
2
Its Managing Member
By: /s/ Frank M. Vest Jr.
---------------------------------------
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV-B, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
---------------------------------------
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV OFFSHORE, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
Its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
---------------------------------------
Frank M. Vest Jr.
Authorized Person
CATTERTON PARTNERS IV SPECIAL PURPOSE, L.P.
a Delaware limited partnership
By: Catterton Managing Partner IV, L.L.C.,
Its General Partner
By: CP4 Principals, L.L.C.,
Its Managing Member
By: /s/ Frank M. Vest Jr.
---------------------------------------
Frank M. Vest Jr.
3
Authorized Person
CATTERTON-SIMON PARTNERS III, L.P.,
a Delaware limited partnership
By: Catterton-Simon Managing Partner III,
L.L.C.
Its General Partner
By: /s/ Frank M. Vest Jr.
-----------------------------------------
Frank M. Vest Jr.
Authorized Person
CATTERTON-BAJA PARTNERS, L.L.C.,
a Delaware limited liability company
By: Catterton Partners IV Management Company,
L.L.C.
Its Managing Member
By: /s/ Frank M. Vest Jr.
-----------------------------------------
Frank M. Vest Jr.
Authorized Person
GRUMMAN HILL INVESTMENTS III, L.P.,
a Delaware limited partnership
By: Grumman Hill Group, L.L.C.
Its General Partner
By: /s/ James T. Kelsey
-----------------------------------------
James T. Kelsey
Authorized Person
OAK INVESTMENT PARTNERS VIII, L.P.,
a Delaware limited partnership
By: /s/ Gerald R. Gallagher
-----------------------------------------
Gerald R. Gallagher
Managing Member,
Oak Associates VIII, LLC,
The General Partner of Oak Investment
Partners VIII, Limited Partnership
4
OAK VIII AFFILIATES FUND, L.P.,
a Delaware limited partnership
By: /s/ Gerald R. Gallagher
------------------------------------
Gerald R. Gallagher
Managing Member,
Oak Associates VIII, LLC,
The General Partner of Oak VIII
Affiliates Fund,
Limited Partnership
/s/ Steven Lebow
-----------------------------------------
STEVEN LEBOW
/s/ Gregory G. Dollarhyde
-----------------------------------------
GREGORY G. DOLLARHYDE
/s/ Donald D. Breen
-----------------------------------------
DONALD D. BREEN
/s/ Louis A. Siracusa
-----------------------------------------
LOUIS A. SIRACUSA
THE LOUIS A. SIRACUSA SEPARATE PROPERTY
TRUST
By: /s/ Louis A. Siracusa
-----------------------------------------
Louis A. Siracusa
Trustee
5
/s/ James Magglos
-------------------------------------
JAMES MAGGLOS
/s/ Linda Magglos
-------------------------------------
LINDA MAGGLOS
/s/ John Yonkich
-------------------------------------
JOHN YONKICH
/s/ Coralee Yonkich
-------------------------------------
CORALEE YONKICH
/s/ Wolfe H. Bragin
-------------------------------------
WOLFE H. BRAGIN
/s/ Patrick J. McNeela
-------------------------------------
PATRICK J. MCNEELA
/s/ Cyrus Monroe
-------------------------------------
CYRUS MONROE
/s/ Jill Monroe
-------------------------------------
JILL MONROE
JKG ENTERPRISE GROUP MONEY PURCHASE
PENSION PLAN FBO GREG DOLLARHYDE
6
By: /s/ Gregory G. Dollarhyde
____________________________________
Gregory G. Dollarhyde
Trustee
THE HARRY AND JUDITH KEYS FAMILY TRUST
By:
____________________________________
Harry E. Keys
Trustee
By:
____________________________________
Judith A. Keys
Trustee
DAVE & DIANE LIVING TRUST
By: /s/ Dave Johnson
____________________________________
Dave Johnson
Trustee
By: /s/ Diane D. Johnson
____________________________________
Diane D. Johnson
Trustee
7