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EXHIBIT 4.3
$105,000,000
MORTON'S RESTAURANT GROUP, INC.
7 1/2% SENIOR SECURED NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
JEFFERIES & COMPANY, INC. July 7,2003
11100 Santa Monica Boulevard
10th Floor
Los Angeles, CA 90025
Ladies and Gentlemen:
MORTON'S RESTAURANT GROUP, INC., a Delaware corporation (the "COMPANY"), is
issuing and selling to Jefferies & Company, Inc. (the "INITIAL PURCHASER"), upon
the terms set forth in the Purchase Agreement, dated as of June 27, 2003,
between the Company and the Initial Purchaser (the "PURCHASE AGREEMENT"),
$105,000,000 aggregate principal amount at maturity of 7 1/2% Senior Secured
Notes due 2010 issued by the Company (each, a "NOTE" and collectively, the
"NOTES"). As an inducement to the Initial Purchaser to enter into the Purchase
Agreement, the Company and the Guarantors (as defined below) agree with the
Initial Purchaser, for the benefit of the Holders (as defined below) of the
Notes (including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are defined
in the Purchase Agreement shall have the respective meanings ascribed to them in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 5(u).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, between the Company and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: July 7, 2003.
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COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: Senior Secured Notes due 2010 of the Company, identical in
all material respects to the Notes, including the guarantees endorsed thereon,
except for restrictive legends and additional interest provisions.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 90th day after the Issue Date; PROVIDED, THAT if the
Filing Date would otherwise fall on a day that is not a Business Day, then the
Filing Date shall be the next succeeding Business Day.
GUARANTORS: Shall mean the Subsidiary Guarantors.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 7(c).
INDEMNIFYING PARTY: See Section 7(c).
INDENTURE: The Indenture, dated as of the Closing Date, among the Company,
the Guarantors and The Bank of New York, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(n).
ISSUE DATE: July 7, 2003.
LOSSES: See Section 7(a).
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NASD: National Association of Securities Dealers, Inc.
NOTES: Shall mean the Notes (as set forth in the introductory paragraph to
this Agreement).
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof, or
other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 5(n).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer as to which Section 2(j)(iv) is
applicable, in each case, that may not be sold without restriction under federal
or state securities laws until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(j)(iv) hereto is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note, as the case may be, may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities Act.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Registration Statement, the Shelf Registration and any
subsequent Shelf Registration) that covers any of the Registrable Notes pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
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amendments, all exhibits and all material incorporated by reference or deemed to
be incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 430A: Rule 430A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Exchange Notes and the Private Exchange Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Company that guarantees the
obligations of the Company under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would violate applicable law or a policy of
the SEC or its staff, the Company shall (and shall cause each
Guarantor with respect to its guarantee to) (i) prepare and file with
the SEC no later than the Filing Date, a registration statement (the
"EXCHANGE REGISTRATION STATEMENT") on an appropriate
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form under the Securities Act with respect to an offer (the "EXCHANGE
OFFER") to the Holders of Notes to issue and deliver to such Holders,
in exchange for the Notes, a like principal amount of Exchange Notes,
(ii) use its reasonable best efforts to cause the Exchange
Registration Statement to become effective no later than the
Effectiveness Date, (iii) use its reasonable best efforts to keep the
Exchange Registration Statement open for at least 30 days (or longer
if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders, and (iv) use its reasonable best efforts
to commence the Exchange Offer and issue on or prior to 30 Business
Days after the Effectiveness Date, Exchange Notes in exchange for all
Notes validly tendered and not withdrawn prior thereto in the Exchange
Offer. The Exchange Offer shall not be subject to any conditions,
other than that (i) the Exchange Offer does not violate applicable law
or any applicable interpretation of the staff of the SEC; (ii) no
action or proceeding shall have been instituted or threatened in any
court or by any governmental agency that might materially impair the
ability of the Company to proceed with the Exchange Offer, and no
material adverse development shall have occurred in any existing
action or proceeding with respect to the Company; and (iii) all
governmental approvals shall have been obtained, which approvals the
Company deems necessary for the consummation of the Exchange Offer.
(b) The Exchange Notes shall be issued under, and entitled to the benefits
of, (i) the Indenture or a trust indenture that is identical to the
Indenture in all material respects (other than such changes as are
necessary to comply with any requirements of the SEC to effect or
maintain the qualifications thereof under the TIA or exemption from
such qualification) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will accrue
from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the Issue Date of the Notes. Each Exchange
Note and Private Exchange Note shall bear interest at the rate set
forth thereon; PROVIDED, THAT interest with respect to the period
prior to the issuance thereof shall accrue at the rate or rates borne
by the Notes surrendered in exchange therefor from time to time during
such period.
(d) The Company may require each Holder as a condition to participation in
the Exchange Offer to represent (i) that any Exchange Notes received
by it will be acquired in the ordinary course of its business, (ii)
that at the time of the commencement and consummation of the Exchange
Offer such Holder has not entered into any arrangement or
understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) that such
Holder is not an affiliate of the Company within the meaning of the
Securities Act, or, if it is an affiliate of the Company, that it will
comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable to it, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend
to engage in, the distribution of the Exchange Notes and (v) if such
Holder is a Participating Broker-Dealer, that such Holder will receive
Exchange Notes for its
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own account in exchange for Notes that were acquired as a result of
market-making or other trading activities, and that it will deliver a
Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" which shall contain all information that the SEC may
require with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer for its own account in exchange
for Notes that were acquired by it as a result of market-making or
other trading activity (a "PARTICIPATING BROKER-DEALER"). Such "Plan
of Distribution" section shall also allow, to the extent permitted by
applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may resell
the Exchange Notes. The Company shall use reasonable best efforts to
keep the Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period
of time as is necessary to comply with applicable law in connection
with the resale by such Persons of the Exchange Notes; PROVIDED,
HOWEVER, that such period shall not be required to exceed 90 days
(unless such period is extended pursuant to Section 3(d) below) (the
"APPLICABLE PERIOD").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Company (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to the Initial Purchaser in exchange (the "PRIVATE EXCHANGE")
for the Notes held by the Initial Purchaser, a like principal amount
of Senior Secured Notes that are identical to the Exchange Notes in
all material respects except for the existence of restrictions on
transfer thereof under the Securities Act and securities laws of the
several states of the United States and the placement of a restrictive
legend thereon (the "PRIVATE EXCHANGE NOTES"). The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange
Notes and bear the same CUSIP number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall:
(i) mail or cause to be mailed to each Holder of record a copy of
the Prospectus forming part of the Exchange Registration
Statement, together with an appropriate letter of transmittal
and related documents;
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(ii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, the City of New
York, which may be the Trustee or an affiliate thereof;
(iii) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(iv) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Registrable Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
(ii) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder so accepted for exchange;
PROVIDED THAT, in the case of any Securities held in global
form by a depositary, authentication and delivery to such
depositary of one or more replacement Securities in global
form in an equivalent principal amount thereto for the account
of such Holders in accordance with the Indenture shall satisfy
such authentication and delivery requirement.
(i) The Exchange Notes and the Private Exchange Notes may be issued under
(i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event will provide that the
Exchange Notes will not be subject to the transfer restrictions or
additional interest provisions set forth in the Indenture, that the
Private Exchange Notes will be subject to the transfer restrictions
set forth in the Indenture, and that the Exchange Notes, the Private
Exchange Notes and the Notes, if any, will be deemed one class of
security (subject to the provisions of the Indenture) and entitled to
participate in all the security granted by the Company pursuant to the
Collateral Agreements and in any Subsidiary Guarantee (as such terms
are defined in the Indenture) on an equal and ratable basis.
(j) If, (i) applicable interpretations of the staff of the SEC would not
permit the consummation of the Exchange Offer as contemplated by this
Section 2, (ii) the Exchange Offer is not consummated within 30
Business Days after the Effectiveness Date for any reason, (iii) any
holder of Private Exchange Notes so requests in writing to the Company
within 30 days after the consummation of the Exchange Offer or (iv) in
the case of any Holder that participates in the Exchange Offer but
does not receive Exchange Notes on the date of the exchange that may
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be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of
the Company within the meaning of the Securities Act) and in the case
of clauses (i) through (iv) of this paragraph so notifies the Company
within 30 days of consummation of the Exchange Offer, then the Company
(and any then existing Guarantor) shall promptly deliver to the
Holders and the Trustee written notice thereof (the "SHELF NOTICE")
and shall file an Initial Shelf Registration pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is properly delivered pursuant to Section 2(j), then:
(a) INITIAL SHELF REGISTRATION. The Company shall as promptly as
practicable after the date of the Shelf Notice file (and shall cause
any then existing Guarantor to file) with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to
Rule 415 covering all of the Registrable Notes (the "INITIAL SHELF
REGISTRATION"). If the Company (and any then existing Guarantor) has
not yet filed an Exchange Registration Statement, the Company shall
use its reasonable best efforts to file (and shall cause any then
existing Guarantor to use its reasonable best efforts to file) with
the SEC the Initial Shelf Registration on or prior to the Filing Date
and shall use its reasonable best efforts to cause such Initial Shelf
Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date. Otherwise, the Company shall use its
reasonable best efforts to file (and shall cause any then existing
Guarantor to use its reasonable best efforts to file) with the SEC the
Initial Shelf Registration within 90 days of the delivery of the Shelf
Notice and shall use its reasonable best efforts to cause such Shelf
Registration to be declared effective under the Securities Act as
promptly as practicable thereafter. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the
manner or manners reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Company and
Guarantors shall not permit any securities other than the Registrable
Notes to be included in any Shelf Registration. No Holder of
Registrable Notes shall be entitled to include any of its Registrable
Notes in any Shelf Registration pursuant to this Agreement unless such
Holder furnishes to the Company and the Trustee in writing, within 20
days after receipt of a written request therefor, such information as
the Company and the Trustee, after conferring with counsel with regard
to information relating to Holders that would be required by the SEC
to be included in such Shelf Registration or Prospectus included
therein, may reasonably request for inclusion in any Shelf
Registration or Prospectus included therein. The Company shall use its
reasonable best efforts to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which
is two years from the Closing Date (the "EFFECTIVENESS PERIOD"), or
such shorter period ending when (i) all Registrable Notes covered by
the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or (ii) a
Subsequent Shelf Registration covering all of the Registrable Notes
covered by and not sold under
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the Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be
effective for any reason at any time during the Effectiveness Period
(other than during any Blackout Period relating to such Shelf
Registration Statement, or because of the sale of all of the
securities registered thereunder), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend such Shelf Registration
in a manner designed to obtain the withdrawal of the order suspending
the effectiveness thereof, or file (and cause any then existing
Guarantor to file) an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by
and not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration (a "SUBSEQUENT SHELF REGISTRATION"). If
a Subsequent Shelf Registration is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to
keep such Subsequent Shelf Registration continuously effective for a
period equal to the number of days in the Effectiveness Period less
the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "SHELF REGISTRATION"
means the Initial Shelf Registration and any Subsequent Shelf
Registrations.
(c) SUPPLEMENTS AND AMENDMENTS. The Company shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably
requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Shelf
Registration or by any underwriter of such Registrable Notes with
respect to the information included therein regarding one or more of
such Holders or, as applicable, such underwriter.
(d) BLACKOUT PERIOD. Notwithstanding anything to the contrary in this
Agreement, the Company, upon notice to the Holders of Registrable
Notes, may suspend the use of the Prospectus included in any Shelf
Registration Statement in the event that and for a period of time (a
"BLACKOUT PERIOD") not to exceed an aggregate of 60 days in any twelve
month period (1) the Board of Directors of the Company determines, in
good faith, that the disclosure of an event, occurrence or other item
at such time could reasonably be expected to have a material adverse
effect on the business, operations or prospects of the Company and its
subsidiaries, taken as a whole or (2) the disclosure otherwise relates
to a material business transaction which has not been publicly
disclosed and the Board of Directors of the Company determines, in
good faith, that any such disclosure would jeopardize the success of
such transaction or that disclosure of the transaction is prohibited
pursuant to the terms thereof; PROVIDED, THAT, upon the termination of
such Blackout Period,
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the Company promptly shall notify the Holders of Registrable Notes
that such Blackout Period has been terminated.
4. ADDITIONAL INTEREST
(a) The Company acknowledges and agrees that the Holders of Registrable
Notes will suffer damages if the Company fails to fulfill its material
obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay additional cash interest on the
Notes ("ADDITIONAL INTEREST") under the circumstances and to the
extent set forth below (each of which shall be given independent
effect):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the
Filing Date or (B) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the Company
is required to file a Shelf Registration and such Shelf
Registration is not filed on or prior to the date required by
this Agreement, Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.25% per
annum of the principal amount of such Notes for the first 90
days immediately following the Filing Date, such Additional
Interest rate increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period, subject to the
proviso in the last sentence of this paragraph;
(ii) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective on or prior
to the Effectiveness Date, or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer,
the Company is required to file a Shelf Registration and such
Shelf Registration is not declared effective by the SEC on or
prior to the 180th day following the date such Shelf
Registration was filed, Additional Interest shall accrue on
the Notes over and above any stated interest at a rate of
0.25% per annum of the principal amount of such Notes for the
first 90 days immediately following the Effectiveness Date,
such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day
period, subject to the proviso in the last sentence of this
paragraph;
(iii) if (A) the Company (and any then existing Guarantor) has not
exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to
30 Business Days after the Effectiveness Date, (B) if
applicable, a Shelf Registration has been declared effective
and such Shelf Registration ceases to be effective at any time
prior to the second anniversary of its effective date (other
than during any Blackout Period relating to such Shelf
Registration Statement, or such time as all Notes have been
disposed of thereunder), then Additional Interest shall accrue
on the Notes, over and above any stated interest, at a
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rate of 0.25% per annum of the principal amount of such
Notes for the first 90 days commencing on (x) the 31st
Business Day after the Effectiveness Date, in the case of
clause (A) above, or (y) the day such Shelf Registration
ceases to be effective in the case of clause (B) above, such
Additional Interest rate increasing by an additional 0.25%
per annum at the beginning of each subsequent 90-day period,
subject to the proviso in the last sentence of this
paragraph;
PROVIDED, HOWEVER, that the maximum Additional Interest rate on the
Notes may not exceed at any one time in the aggregate 1.0% per annum;
and PROVIDED FURTHER, that (1) upon the filing of the Exchange
Registration Statement or Shelf Registration (in the case of (i)
above), (2) upon the effectiveness of the Exchange Registration
Statement or Shelf Registration (in the case of (ii) above), or (3)
upon the exchange of Exchange Notes for all Notes tendered (in the
case of (iii)(A) above), or upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case of
(iii)(B) above), Additional Interest on the Notes as a result of such
clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue. Additional Interest will not accrue under more than
one of the foregoing clauses (1) -(3) at any one time. Notwithstanding
the foregoing, no Additional Interest shall accrue with respect to
Notes that are not Registrable Notes.
(b) The Company shall notify the Trustee within 3 Business Days after each
and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to clause (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash, on the dates and in the
manner provided in the Indenture and whether or not any cash interest
would then be payable on such date, commencing with the first such
semi-annual date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by
the principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the
case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
(c) The parties hereto agree that the Additional Interest provided for in
this Section 4 constitutes the sole damages that will be suffered by
Holders of Registrable Notes by reason of the occurrence of any of the
events described in Sections 4(a)(i)-(iii) hereof.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Company shall effect such registrations to permit the
sale of such securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant
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thereto and in connection with any Registration Statement filed by the Company
hereunder, the Company shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, the
Exchange Registration Statement or if the Exchange Registration
Statement is not filed because of the circumstances contemplated by
Section 2(j), a Shelf Registration as prescribed by Section 3, and use
its reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; PROVIDED
THAT, if (1) a Shelf Registration is filed pursuant to Section 3 or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period before filing any Registration
Statement or Prospectus or any amendments or supplements thereto the
Company shall, if requested, furnish to and afford the Holders of the
Registrable Notes to be registered pursuant to such Shelf Registration
Statement, or each Participating Broker-Dealer and to their counsel
and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents
to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least 5 Business Days prior to
such filing). The Company shall not file any such Registration
Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must provide information for the
inclusion therein without the Holders being afforded an opportunity to
review such documentation if the holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may
be, their counsel, or the managing underwriters, if any, shall
reasonably object in writing on a timely basis.
(b) Provide an indenture trustee for the Registrable Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and cause the
Indenture (or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the first
Registration Statement; and in connection therewith, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act
and the
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Exchange Act applicable to them with respect to the disposition of all
securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; PROVIDED, THAT, to the extent relating
to a Shelf Registration Statement, none of the foregoing shall be
required during a Blackout Period. Other than during a Blackout Period
with respect to a Shelf Registration Statement, the Company shall not,
during the Applicable Period, voluntarily take any action that would
result in selling Holders of the Registrable Notes covered by a
Registration Statement or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period, unless such action is required by
applicable law, rule or regulation or permitted by this Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request in writing (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post
effective amendment thereto effective, (ii) such reasonable number of
copies of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents incorporated
therein by reference and all exhibits) and (iii) such reasonable
number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and each amendment
and supplement thereto, and such reasonable number of copies of the
final Prospectus as filed by the Company pursuant to Rule 424(b) under
the Securities Act, in conformity with the requirements of the
Securities Act and each amendment and supplement thereto. The Company
hereby consents to the use of the Prospectus by each of the selling
Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, and the underwriters or agents, if any, and
dealers, if any, in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto from whom the
Company has received written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any,
promptly (but in any event within 2 Business Days), and confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the SEC of
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any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities
Act to be delivered in connection with sales of the Registrable Notes
the representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by
Section 5(m) hereof cease to be true and correct, (iv) of the receipt
by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition of any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making
of any changes in, or amendments or supplements to, such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement and the Prospectus, it will not contain any
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, in light of the circumstances under which they were made, not
misleading and (vi) of any reasonable determination by the Company
that a post-effective amendment to a Registration Statement would be
appropriate.
(f) Use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible date.
(g) Subject to Section 3(d), if (A) a Shelf Registration is filed pursuant
to Section 3 or (B) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period or (C) reasonably
requested in writing by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information or revisions to information therein
relating to such underwriters or selling Holders as the managing
underwriters, if any, or such Holders or their counsel reasonably
request in writing to be included or made therein and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplements or post-effective amendment.
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(h) Prior to any public offering of Registrable Notes or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be,
the managing underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer or any
managing underwriter or underwriters, if any, reasonably request in
writing; PROVIDED THAT where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Company agrees to cause its counsel to
perform Blue Sky investigations and file any registrations and
qualifications required to be filed pursuant to this Section 5(h),
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
PROVIDED THAT neither the Company nor any existing Guarantor shall be
required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in
any such jurisdiction where it is not then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is requested to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, cooperate with the
selling Holders of Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company, and
enable such Registrable Notes to be in such denominations (subject to
applicable requirements contained in the Indenture) and registered in
such names as the managing underwriter or underwriters, if any, or
Holders may reasonably request in writing.
(j) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by Section 5(e)(v) or 5(e)(vi) hereof, as promptly as
practicable (except, in the case of a Shelf Registration, during a
Blackout Period), prepare and file with the SEC, at the expense of the
Company, a
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supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers of
the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(k) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement to be rated with such appropriate rating
agencies (unless such Notes are already so rated), if so requested in
writing by the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement or the
managing underwriter or underwriters, if any.
(l) Prior to the initial issuance of the Exchange Notes, (i) provide the
Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(m) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances) and take all such other actions in connection therewith
(including those reasonably requested in writing by the managing
underwriters, if any) in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration,
(i) make such representations and warranties to the Holders and the
underwriters, if any, with respect to the business of the Company and
its subsidiaries as then conducted, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, as may
be appropriate in the circumstances, and confirm the same if and when
reasonably required; (ii) obtain an opinion 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), addressed to the underwriters, if any, covering
the matters customarily covered in opinions of counsel to the Company
requested in underwritten offerings of debt securities similar to the
Notes, as may be appropriate in the circumstances; and (iii) obtain
"cold comfort" letters and updates thereof (which letters and updates
(in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which
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financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt securities similar to
the Notes, as may be appropriate in the circumstances.
(n) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any,
and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "INSPECTORS"), upon written
request, at the offices where normally kept, during reasonable
business hours, all pertinent financial and other records and
pertinent corporate documents of the Company and its subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested in writing
by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will
keep the Records confidential and not disclose any of the Records
unless (i) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (ii)
the information in such Records is public or has been made generally
available to the public other than as a result of a disclosure or
failure to safeguard by such Inspector or (iii) disclosure of such
information is, in the reasonable written opinion of counsel for any
Inspector, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
related to, or involving this Agreement, or any transaction
contemplated hereby or arising hereunder. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it
as the basis for any market transactions in the securities of the
Company unless and until such is made generally available to the
public. Each Inspector, each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the
Company and, to the extent practicable, use its best efforts to allow
the Company, at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential at its expense.
(o) Comply with all applicable rules and regulations of the SEC and make
generally available to the security holders of the Company with regard
to any applicable
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Registration Statement earning statements satisfying the provisions of
section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any fiscal quarter (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange, if so
requested by the Trustee, obtain an opinion of counsel to the Company
(in form, scope and substance customary for underwritten
transactions), addressed to the Trustee for the benefit of all Holders
participating in the Exchange Offer or Private Exchange, as the case
may be, to the effect that (i) the Company and the existing Guarantors
have duly authorized, executed and delivered the Exchange Notes or the
Private Exchange Notes, as the case may be, and the Indenture, (ii)
the Exchange Notes or the Private Exchange Notes, as the case may be,
and the Indenture constitute legal, valid and binding obligations of
the Company and the existing Guarantors, enforceable against the
Company and the existing Guarantors in accordance with their
respective terms, except as such enforcement may be subject to
customary United States and foreign exceptions and (iii) all
obligations of the Company and the existing Guarantors under the
Exchange Notes or the Private Exchange Notes, as the case may be, and
the Indenture are secured to the same extent as the Notes.
(q) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by the Holders to the Company (or to
such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall mark, or cause to be marked, on such Registrable Notes
that the Exchange Notes or the Private Exchange Notes, as the case may
be, are being issued as substitute evidence of the indebtedness
originally evidenced by the Registrable Notes; PROVIDED THAT in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the NASD.
(s) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
(t) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such
seller or Participating Broker-Dealer
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and the distribution of such Registrable Notes as the Company may,
from time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller who fails to
furnish such information within a reasonable time (which time in no
event shall exceed 45 days) after receiving such request. Each seller
of Registrable Notes or Participating Broker-Dealer as to which any
registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished by such seller not materially
misleading.
(u) Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to
be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt of any notice from the Company (i) of the happening of
any event of the kind described in Section 5(e)(ii), 5(e)(iv),
5(e)(v), or 5(e)(vi) or (ii) of the commencement of a Blackout Period,
such Holder will forthwith discontinue disposition of such Registrable
Notes covered by a Registration Statement (other than any Exchange
Offer Registration Statement in the case of a Blackout Period) and
such Participating Broker-Dealer will forthwith discontinue
disposition of such Exchange Notes pursuant to any Prospectus and, in
each case, forthwith discontinue dissemination of such Prospectus
until (x) in the case of clause (i) of this paragraph, such Holder's
or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(j), or
until it is advised in writing (the "ADVICE") by the Company that the
use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so directed by
the Company, such Holder or Participating Broker-Dealer, as the case
may be, will deliver to the Company all copies, other than permanent
file copies, then in such Holder's or Participating Broker-Dealer's
possession, of the Prospectus covering such Registrable Notes current
at the time of the receipt of such notice or (y) in the case of clause
(ii) of this paragraph, the receipt of notice from the Company that
such Blackout Period has ended. In the event the Company shall give
any such notice, the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving
of such notice to and including the date when each Participating
Broker-Dealer shall have received (x) the copies of the supplemented
or amended Prospectus contemplated by Section 5(j) or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company (other than any underwriting
discounts or commissions) shall be borne by the Company, whether or
not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and
filing fees, including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with any
underwritten offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 5(h) hereof,
(ii) messenger,
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telephone and delivery expenses incurred in connection with the
performance of its obligations hereunder, (iii) fees and disbursements
of counsel for the Company, (iv) fees and disbursements of all
independent certified public accountants referred to in Section 5
(including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance),
(v) rating agency fees, (vi) Securities Act liability insurance, if
the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by the Company, (viii) internal expenses of the
Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the fees and
expenses of the Trustee and the Exchange Agent and (xi) the expenses
relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to
comply with this Agreement (other than underwriting discounts and
commissions).
(b) In the case of a Shelf Registration, the Company shall reimburse the
Holders for the reasonable fees and disbursements of not more than one
counsel chosen by the Holders of a majority in aggregate principal
amount of the Registrable Notes to be included in any Registration
Statement. The Company shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of
the Exchange Notes or Private Exchange Notes in exchange for the
Notes; PROVIDED THAT the Company shall not be required to pay taxes
payable in respect of any transfer involved in the issuance or
delivery of any Exchange Note or Private Exchange Note in a name other
than that of the Holder of the Note in respect of which such Exchange
Note or Private Exchange Note is being issued.
7. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company and the Guarantors jointly
and severally agree to indemnify and hold harmless each Holder of
Registrable Notes, Exchange Notes or Private Exchange Notes and each
Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, each Person, if any, who controls each such Holder
(within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) and the officers, directors and partners of
each such Holder, Participating Broker-Dealer and controlling person
from and against any losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and
reasonable attorneys' fees as provided in this Section 7) and
reasonable expenses (including, without limitation, reasonable costs
and expenses incurred in connection with investigating, preparing,
pursuing or defending against any of the foregoing) (collectively,
"LOSSES"), insofar as such Losses arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact in any
Registration Statement, Prospectus or form of prospectus, or in any
amendment or supplement thereto, or in any preliminary prospectus, or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
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misleading, except insofar as such Losses result solely from
information relating to such Holder or Participating Broker-Dealer and
furnished in writing to the Company (or reviewed and approved in
writing) by such Holder or Participating Broker-Dealer or their
counsel expressly for use therein; PROVIDED, HOWEVER, that the Company
and the Guarantors will not be liable to any Indemnified Party (as
defined below) under this Section 7 to the extent Losses were solely
caused by an untrue statement or omission or alleged untrue statement
or omission that was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto
if (i) any such Losses resulted from an action, claim or suit by any
Person who purchased Registrable Notes or Exchange Notes which are the
subject thereof from such Indemnified Party and (ii) it is established
in the related proceeding that such Indemnified Party failed to
deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Notes or Exchange Notes sold to such Person
if required by applicable law, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a
result of noncompliance by the Company with Section 5 of this
Agreement. The Company and the Guarantors also agree to indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders or the
Participating Broker-Dealer.
(b) INDEMNIFICATION BY HOLDER. Each Holder shall indemnify and hold
harmless the Company, the Guarantors, their respective directors and
each Person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers and partners of such controlling
persons, from and against all Losses insofar as such Losses arise out
of or are based upon any untrue statement or alleged untrue statement
of a material fact in any Registration Statement, Prospectus or form
of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading to the extent, but only to the
extent, that such losses are finally judicially determined by a court
of competent jurisdiction in a final, unappealable order to have
resulted solely from an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact
contained in or omitted from any information so furnished in writing
by such Holder to the Company expressly for use therein.
Notwithstanding the foregoing, in no event shall the liability of any
selling Holder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon
the sale of the Registrable Notes giving rise to such indemnification
obligation.
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(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder
(an "INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify
the party or parties from which such indemnity is sought (the
"INDEMNIFYING PARTY" or "INDEMNIFYING PARTIES", as applicable) in
writing; PROVIDED, THAT the failure to so notify the Indemnifying
Parties shall not relieve the Indemnifying Parties from any obligation
or liability except to the extent (but only to the extent) that it
shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal) that the Indemnifying
Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, to assume, at its expense, the defense of any
such proceeding, PROVIDED, THAT an Indemnified Party shall have the right to
employ separate counsel in any such proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or parties unless: (1) the Indemnifying Party has agreed
to pay such fees and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such proceeding or shall have failed to employ
counsel reasonably satisfactory to such Indemnified Party; or (3) the named
parties to any such proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party or any of its affiliates or
controlling persons, and such Indemnified Party shall have been advised by
counsel that there may be one or more defenses available to such Indemnified
Party that are in addition to, or in conflict with, those defenses available to
the Indemnifying Party or such affiliate or controlling person (in which case,
if such Indemnified Party notifies the Indemnifying Parties in writing that it
elects to employ separate counsel at the expense of the Indemnifying Parties,
the Indemnifying Parties shall not have the right to assume the defense and the
reasonable fees and expenses of such counsel shall be at the expense of the
Indemnifying Party; it being understood, however, that, the Indemnifying Party
shall not, in connection with any one such proceeding or separate but
substantially similar or related proceedings, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to one appropriate local counsel in
each required jurisdiction) at any time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) CONTRIBUTION. If the indemnification provided for in this Section 7 is
unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless
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for any Losses in respect of which this Section 7 would otherwise
apply by its terms (other than by reason of exceptions provided in
this Section 7), then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall have a joint and several
obligation to contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party,
on the one hand, and such Indemnified Party, on the other hand, in
connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent any such
statement or omission. The amount paid or payable by an Indemnified
Party as a result of any Losses shall be deemed to include any legal
or other fees or expenses incurred by such party in connection with
any proceeding, to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in
Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by another method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "MAXIMUM CONTRIBUTION
AMOUNT" shall equal the excess of (i) the aggregate gross proceeds received by
such Holder pursuant to the sale of such Registrable Notes or Exchange Notes
over (ii) the aggregate amount of damages that such Holder 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.
The indemnity and contribution agreements contained in this Section 7 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
8. RULES 144 AND 144A
The Company covenants that it shall file the reports required to be filed
by it (if so required) under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the written request of any Holder of Registrable Notes, make publicly
available other information necessary to permit sales pursuant to Rule 144 and
144A. Upon the written request of any Holder, the Company shall deliver to such
Holder a written statement as to whether it has complied with such information
and requirements.
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9. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration are to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering; PROVIDED, HOWEVER, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the 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) NO INCONSISTENT AGREEMENTS. The Company has not entered, as of the
date hereof, and the Company shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of
Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not entered and will not enter into
any agreement with respect to any of its securities that will grant to
any Person piggy-back rights with respect to a Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. The Company shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability
of the Holders to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of the Company and, in circumstances
that would adversely affect any Holders of Registrable Notes, Holders
of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes; PROVIDED, HOWEVER, that Section 7 and
this Section 10(c) may not be amended, modified or supplemented
without the prior written consent of the Company and each Holder.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders of Registrable Notes whose securities are being
tendered pursuant to the Exchange Offer or sold pursuant to a Notes
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by the Company and Holders of at least
a majority in aggregate principal amount of the Registrable Notes
being tendered or being sold by such Holders pursuant to such Notes
Registration Statement.
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(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar of the Notes, with a copy in like
manner to the Initial Purchaser as follows:
Jefferies & Company, Inc.
11100 Santa Monica Boulevard, 10th Floor
Los Angeles, California 90025
Facsimile No.: (310) 575-5166
Attention: Lloyd Feller, Esq.
with a copy to:
Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, New York 10019
Facsimile No.: (212) 262-1910
Attention: Ronald S. Brody, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 10(d)(i);
(iii) if to the Company, as follows:
Morton's Restaurant Group, Inc.
3333 New Hyde Park Road
New Hyde Park, New York 11042
Attention: Chief Financial Officer
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Michael R. Littenberg, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three business days
after being deposited in the United States mail, postage prepaid, if mailed; one
business day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
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(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
hereto, including, without limitation and without the need for an
express assignment, subsequent Holders of Securities.
(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 NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. EACH PARTY HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
SUCH PARTY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER
PARTY IN ANY OTHER JURISDICTION.
(i) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions
26
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set forth herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(j) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Company or its controlled
affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) THIRD PARTY BENEFICIARIES. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is intended by
the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understanding,
correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Company on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced
hereby.
27
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
BORROWER:
MORTON'S RESTAURANT GROUP, INC.,
a Delaware corporation
By: /s/ Thomas J. Baldwin
---------------------------
Name: Thomas J. Baldwin
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS:
PORTERHOUSE, INC., a Delaware corporation
MORTON'S OF CHICAGO, INC., an Illinois corporation
MORTON'S OF CHICAGO/ADDISON, INC., a Delaware corporation
MORTON'S OF CHICAGO/ATLANTA, INC., an Illinois corporation
MORTON'S OF CHICAGO/BALTIMORE, INC., a Delaware corporation
MORTON'S OF CHICAGO/BOCA RATON, INC., a Delaware corporation
MORTON'S OF CHICAGO/BUCKHEAD, INC., a Delaware corporation
MORTON'S OF CHICAGO/CHICAGO, INC., a Delaware corporation
MORTON'S OF CHICAGO/CINCINNATI, INC., a Delaware corporation
MORTON'S OF CHICAGO/CLAYTON, INC., a Delaware corporation
MORTON'S OF CHICAGO/CLEVELAND, INC., an Illinois corporation
MORTON'S OF CHICAGO/COLUMBUS, INC., a Delaware corporation
MORTON'S OF CHICAGO/DALLAS, INC., an Illinois corporation
MORTON'S OF CHICAGO/DENVER, INC., an Illinois corporation
MORTON'S OF CHICAGO/DETROIT, INC., a Delaware corporation
MORTON'S OF CHICAGO/FIFTH AVENUE, INC., a Delaware corporation
MORTON'S OF CHICAGO/FLAMINGO ROAD CORP., a Delaware corporation
MORTON'S OF CHICAGO/HOUSTON, INC., a Delaware corporation
MORTON'S OF CHICAGO/MIAMI, INC., a Delaware corporation
MORTON'S OF CHICAGO/MINNEAPOLIS, INC., a Delaware corporation
By: /s/ Thomas Baldwin
----------------------------------
Name: Thomas J. Baldwin
Title: Executive Vice President and Chief
Financial Officer of the above
corporations
Registration Rights Agreement Signature Page
<Page>
MORTON'S OF CHICAGO/NASHVILLE, INC., a Delaware corporation
MORTON'S OF CHICAGO/NORTH MIAMI BEACH, INC., a Delaware corporation
MORTON'S OF CHICAGO/ORLANDO, INC., a Delaware corporation
MORTON'S OF CHICAGO/PALM BEACH INC., a Delaware corporation
MORTON'S OF CHICAGO/PALM DESERT, INC., a Delaware corporation
MORTON'S OF CHICAGO/PHILADELPHIA, INC., an Illinois corporation
MORTON'S OF CHICAGO/PHOENIX, INC., a Delaware corporation
MORTON'S OF CHICAGO/PITTSBURGH, INC., a Delaware corporation
MORTON'S OF CHICAGO/PORTLAND, INC., a Delaware corporation
MORTON'S OF CHICAGO/PUERTO RICO, INC., a Delaware corporation
MORTON'S OF CHICAGO/ROSEMONT, INC., an Illinois corporation
MORTON'S OF CHICAGO/SACRAMENTO, INC., a Delaware corporation
MORTON'S OF CHICAGO/SAN ANTONIO, INC., a Delaware corporation
MORTON'S OF CHICAGO/SAN DIEGO, INC., a Delaware corporation
MORTON'S OF CHICAGO/SAN FRANCISCO, INC., a Delaware corporation
MORTON'S OF CHICAGO/SANTA ANA, INC., a Delaware corporation
MORTON'S OF CHICAGO/SCOTTSDALE, INC., a Delaware corporation
MORTON'S OF CHICAGO/SEATTLE, INC., a Delaware corporation
MORTON'S OF CHICAGO/VIRGINIA, INC., an Illinois corporation
MORTON'S OF CHICAGO/WASHINGTON D.C. INC., a Delaware corporation
MORTON'S OF CHICAGO/WASHINGTON SQUARE, INC., a Delaware corporation
MORTON'S OF CHICAGO/WESTBROOK, INC., an Illinois corporation
PORTERHOUSE OF LOS ANGELES, INC., a Delaware corporation
MOCGC CORP., a Virginia corporation
MORTON'S OF CHICAGO HOLDING, INC., a Delaware corporation
MORTON'S OF CHICAGO/BOSTON LLC, a Delaware limited liability company
ARNIE MORTON'S OF CHICAGO/BURBANK LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/CHARLOTTE LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/CRYSTAL CITY LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/DENVER CRESCENT TOWN CENTER, LLC, a Delaware limited
liability company
ARNIE MORTON'S OF CHICAGO/FIGUEROA LLC, a Delaware limited liability company
By: /s/ Thomas Baldwin
----------------------------------
Name: Thomas J. Baldwin
Title: Executive Vice President and Chief
Financial Officer of the above
corporations and limited liability companies
Registration Rights Agreement Signature Page
<Page>
MORTON'S OF CHICAGO/GREAT NECK LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/HACKENSACK LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/HARTFORD LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/HONOLULU LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/INDIANAPOLIS LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/JACKSONVILLE LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/KANSAS CITY LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/KING OF PRUSSIA LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/LOUISVILLE LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/NEW ORLEANS LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/PITTSBURGH LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/RESTON LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/RICHMOND LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/SCHAUMBURG LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/STAMFORD LLC, a Delaware limited liability company
MORTON'S OF CHICAGO/WHITE PLAINS LLC, a Delaware limited liability company
ITALIAN RESTAURANTS HOLDING CORP., a Delaware corporation
BERTOLINI'S RESTAURANTS, INC., a Delaware corporation
BERTOLINI'S OF CIRCLE CENTRE, INC., a Delaware corporation
BERTOLINI'S/KING OF PRUSSIA, INC., a Delaware corporation
BERTOLINI'S OF LAS VEGAS, INC., a Delaware corporation
BERTOLINI'S AT VILLAGE SQUARE, INC., a Delaware corporation
By: /s/ Thomas J. Baldwin
-------------------------
Name: Thomas J. Baldwin
Title: Executive Vice President and Chief
Financial Officer of the above
corporations and limited liability companies
Registration Rights Agreement Signature Page
<Page>
ADDISON STEAKHOUSE, INC., a Texas corporation
CHICAGO STEAKHOUSE, INC., a Texas corporation
HOUSTON STEAKHOUSE, INC., a Texas corporation
SAN ANTONIO STEAKHOUSE, INC., a Texas corporation
By: /s/ Darryl G. Steadman
------------------------
Name: Darryl G. Steadman
Title: Executive Vice President
REGISTRATION RIGHTS AGREEMENT
<Page>
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANY, INC.
By: /s/ Andrew Booth
-----------------
Name: Andrew Booth
Title: Managing Director
REGISTRATION RIGHTS AGREEMENT