Exhibit 4.3
Execution Copy
REGISTRATION AND TAG-ALONG RIGHTS AGREEMENT
AGREEMENT dated as of March 17, 1998 among (i) U.S. FRANCHISE SYSTEMS,
INC., a Delaware corporation (the"Company"), (ii) SEXTANT TRADING LLC,
LUBERT-ADLER REAL ESTATE OPPORTUNITY FUND, L.P., LUBERT-ADLER REAL ESTATE
OPPORTUNITY FUND II, L.P. and LUBERT-ADLER CAPITAL REAL ESTATE OPPORTUNITY FUND,
L.P. (the "Investors"), and (iii) MICHAEL LEVEN and NEAL K. ARONSON (the
"Management Holders" and, together with the Investors, the "Stockholders").
The Investors have purchased a total of 500,000 shares of the
Company's Class A Common Stock, $.0l par value (the "Common Stock"), pursuant to
a Subscription Agreement of even date herewith, and have under certain
circumstances the right to purchase additional shares of Common Stock. All such
shares of Common Stock acquired by the Investors from the Company, and all other
securities 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 other reorganization, are referred to
herein as the "Registrable Securities." As to any particular Registrable
Securities, such securities will cease to be Registrable Securities when they
are either (i) distributed to the public pursuant to an offering registered
under the Securities Act of 1933, as amended (the "Securities Act"), (ii) sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act or any similar rule then in force, or (iii)
eligible for sale pursuant to the provisions of Rule 144(k) under the Securities
Act. In consideration of the mutual undertakings set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. Each Investor shall have the
right on one occasion to require the Company to register all or part of its
Registrable Securities under the Securities Act on Form S-1 or any similar
long-form registration form ("Long-Form Registrations") or on Form S-2 or S-3 or
any similar short-form registration form ("Short-Form Registrations"), if
available. Within ten days after receipt of any such request, the Company will
give written notice of such requested registration to all other holders of
Registrable Securities and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 10 days after the receipt of the Company's notice. All
registrations requested pursuant to this Section 2(a) are referred to herein as
"Demand Registrations."
(b) NUMBER OF DEMAND REGISTRATIONS. Each Investor will be
entitled to one Demand Registration in which the Company will pay all
Registration
Expenses. A registration will not count as a permitted Demand Registration
until it has become effective and has remained continuously effective for a
period of 120 days (or such shorter period as may be required to effect the
distribution of Registrable Securities in accordance with the intended methods
of distribution thereunder).
(c) PRIORITY ON DEMAND REGISTRATIONS. No securities other than
Registrable Securities shall be included in any Demand Registration. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the amount of Registrable
Securities requested to be included in such offering exceeds the amount of
securities which can be sold therein without adversely affecting the
marketability of the offering, the Company will reduce the amount of Registrable
Securities in such registration pro rata among the holders thereof on the basis
of the respective amounts of Registrable Securities requested to be included
therein.
(d) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will
not be obligated to effect any Long-Form Demand Registration within six months
after the effective date of a previous Demand Registration or a registration in
which the Stockholders were given piggyback rights pursuant to Section 2 and in
which there was no underwriter cut-back in the amount of Registrable Securities
requested to be included therein. The Company may postpone for up to 90 days
the filing or the effectiveness of a Demand Registration if the Company's board
of directors reasonably determines in its good faith judgment that such Demand
Registration would have an adverse effect on any material pending corporate
transaction that has not been publicly disclosed, provided that in such event
the Investors will be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration will not count as one of the permitted
Demand Registrations hereunder. The Company may not exercise its right to
postpone a Demand Registration more than once in any nine-month period.
(e) SELECTION OF UNDERWRITERS. The Company shall have the right
to select the investment banker(s) and manager(s) to administer any Demand
Registration, subject to the approval of the Investors, which will not be
unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 1, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (other than on Form S-4 or Form S-8 or any successor form or pursuant to the
exercise of contractual demand registration rights) until a period of at least
six months has elapsed from the effective date of such previous registration.
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Section 2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act and the registration
form to be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company will give prompt written notice to the Investors of
its intention to effect such a registration and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests from the Investors for inclusion therein within 30
days after the receipt of the Company's notice.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the amount of securities requested to be included in such registration
exceeds the amount which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such registration
along with securities requested to be included in such registration by other
holders exercising similar piggyback rights, pro rata among the holders of such
Registrable Securities and such other holders on the basis of the number of
shares requested to be included therein by each such holder, and (iii) third,
other securities requested to be included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities exercising demand registration rights, and the managing
underwriters advise the Company in writing that in their opinion the amount of
securities requested to be included in such registration exceeds the amount
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company will include in such registration (i) first, the
securities requested to be included therein by the holders exercising demand
registration rights, (ii) second, the Registrable Securities requested to be
included in such registration along with securities requested to be included in
such registration by other holders exercising similar piggyback rights, pro rata
among the holders of such Registrable Securities and such other holders on the
basis of the number of shares requested to be included therein by each such
holder, and (iii) third, other securities requested to be included in such
registration.
Section 3. REGISTRATION PROCEDURES. Whenever the Investors have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its reasonable best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission, within 45 days (if a Short-Form Registration) or 90 days (if a
Long-Form Registration) after a demand therefor, a registration statement with
respect to such
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Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the Investors copies of all
such documents proposed to be filed, which documents will be subject to the
review of such counsel);
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six months and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each Stockholder such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such Stockholder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Stockholder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Stockholder (provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) promptly notify each seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD Automated Quotation
System;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement:
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(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Investors
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158 thereunder; and
(k) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters.
Section 4. REGISTRATION EXPENSES. All expenses incident to any
permitted Demand Registration or any Piggyback Registration, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of counsel for the Company and one counsel for
the holders of Registrable Securities, and fees and expenses of all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other persons retained by the Company (together, "Registration Expenses")
will be borne by the Company.
Section 5. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder of Registrable Securities expressly
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for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers and each person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder of Registrable Securities; provided that the
obligation to indemnify will be individual to each holder of Registrable
Securities and will be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without the indemnifying party's consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which case the fees of such additional counsel shall
be paid by the indemnifying party.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such
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provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
Section 6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder
of Registrable Securities may participate in any registration hereunder which is
underwritten unless such person (1) agrees to sell such Registrable Securities
on the basis provided with any underwriting arrangements (including any lock-up)
governing such registration and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
(including holdback agreements) required under the terms of such underwriting
arrangements.
Section 7. TAG-ALONG RIGHTS. In the event that any Management
Holder proposes to transfer, in a single transaction or series of related
transactions, shares of Common Stock representing 25% or more of the shares of
Common Stock held by such Management Holder on the date hereof, which transfer
either (i) occurs prior to the date on which all Registrable Securities are
freely transferable pursuant to Rule 144(k) under the Securities Act, or (ii)
involves a change in control of the Company (defined as the acquisition of
Common Stock representing more than 33% of the total combined voting power of
the Common Stock taken as a whole, by any person or group of persons acting in
concert), the transferring Management Holder shall give written notice of such
proposed transfer to each Investor specifying the terms and conditions of such
transfer and the identity of the proposed transferee (a "Sale Notice"). Each
Investor shall have the right to participate in the proposed transfer by
delivering to the transferring Stockholder a written notice of such election
within five business days following delivery of the Sale Notice. If any
Investor elects to participate in such transfer, the transferring Management
Holder and each such participating Investor will be entitled to sell in such
proposed transfer, at the same price and on the same terms, a number of shares
of Common Stock equal to the product of (i) the quotient determined by dividing
the number of shares of Common Stock then held by the transferring Management
Holder or such participating Investor, as the case may be, by the aggregate
number of shares of Common Stock then held by the transferring Management Holder
and all participating holders (including the Investors) exercising contractual
tag-along rights, multiplied by (ii) the number of shares of Common Stock to be
sold in such proposed transfer. The transferring Management Holder shall not
effect such proposed transfer unless the proposed transferee consents to the
participation of the Investors pursuant to this Section 7. In the event that no
Investor elects to participate in a proposed transfer, the transferring
Management Holder shall have a period of time ending 90 days after the date of
delivery of the Sale Notice (or, if later, five days following the expiration or
early termination of all waiting periods applicable to such transfer under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) within which
to effect the transfer on the terms set forth in the Sale Notice. In the event
that such transfer is not completed within such period or in the event of a
material change in the terms set forth in the Sale Notice, the transferring
Management Holder shall be required to once again comply with the provisions of
this Section 7 prior to effecting any transfer of such shares. This Section 7
shall not apply to transfers between the Management
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Holders or by a Management Holder to members of such Stockholder's immediate
family or a trust for the benefit of members of such Stockholder's immediate
family so long as such transferee agrees to be bound by the provisions of this
Section 7 in connection with any subsequent transfer of such shares. For
purposes of this Section 7, "Common Stock" shall include the Company's Class A
Common Stock and Class B Common Stock.
Section 8. SECURITIES LAW COMPLIANCE. With a view to making
available the benefits of certain rules and regulations of the Securities and
Exchange Commission which may effectuate the registration of Registrable
Securities or permit the sale of Registrable Securities to the public without
registration, the Company agrees to: (i) exercise best efforts to cause the
Company to be eligible to utilize Form S-3 (or any similar form) for the
registration of Registrable Securities; (ii) at such time as any Registrable
Securities are eligible for transfer under Rule 144(k), upon the request of the
holder of such Registrable Securities, remove any restrictive legend from the
certificates evidencing such securities at no cost to such holder; (iii) make
and keep available public information as defined in Rule 144 under the
Securities Act at all times; (iv) file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(v) furnish any holder of Registrable Securities upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents as a holder of Registrable Securities may reasonably request in
availing itself of any rule or regulation of the Commission (including Rule
144A) allowing a holder of Registrable Securities to sell any such securities
without registration.
Section 9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Investors in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
Investors to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would materially and adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) REMEDIES. Any Stockholder having rights under any provision
of this Agreement will be entitled to enforce such rights specifically and
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law or equity. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any party may
in its sole discretion apply to any
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court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
(d) AMENDMENTS, WAIVERS AND TERMINATION. Except as otherwise
provided herein, the provisions of this Agreement may be amended or waived only
upon the prior written consent of the Company and the Investors. This Agreement
shall automatically expire on the fifteenth anniversary of the date hereof.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of the
Investors are also for the benefit of, and enforceable by, any subsequent holder
of Registrable Securities, and the rights under this Agreement shall be
automatically assigned to any such subsequent holder.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 10. NOTICES. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and shall be (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid,
(iii) sent by fax transmission with telephonic confirmation accompanied by a
mailing, pursuant to clause (ii), or (iv) sent on a next-day basis via a
nationally recognized overnight courier to the recipient. Such notices, demands
and other communications will be sent to the address indicated below:
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(a) If to the Company:
U.S. Franchise Systems, Inc.
13 Corporate Square, Suite 250
Atlanta, GA 30329
Attn: Neal Aronson
` Facsimile: (404) 321-4482
(b) If to the Investors:
Sextant Trading LLC
527 Madison Avenue, 17th Floor
New York, NY 10022
Attn: Adam Anhang
Facsimile: (212) 319-4557
Lubert-Adler Funds
101 West Main Street
Moorestown, NJ 08057
Attn: Dean Adler
Facsimile: __________
(c) If to the Management Holders:
c/o U.S. Franchise Systems, Inc.
13 Corporate Square, Suite 250
Atlanta, GA 30329
Facsimile: (404) 321-4482
or to such other address as any party may specify by notice given to the other
party in accordance with this Section. The date of giving any such notice shall
be (i) the date of hand delivery, (ii) the date five days after posting of the
mail, (iii) the date sent by fax transmission if during a business day or
otherwise the first business day thereafter or (iv) the business day after
delivery to the overnight courier service.
Section 11. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF DELAWARE.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
U.S. FRANCHISE SYSTEMS, INC.
By: /s/ Neal Aronson
----------------------------------
Its: Executive Vice President and
Chief Financial Officer
SEXTANT TRADING LLC
By: /s/ David Hamamoto
-----------------------------
Its:
-------------------------
LUBERT-ADLER REAL ESTATE
OPPORTUNITY FUND, L.P.
By: IL PARTNERS, L.P., its General Partner
By: L&A Management, Inc., its
General Partner
By: /s/ Dean S. Adler
----------------------------
Dean S. Adler, President
LUBERT-ADLER REAL ESTATE
OPPORTUNITY FUND II, L.P.
By: IL PARTNERS, L.P., its General Partner
By: L&A Management, Inc., its
General Partner
By: /s/ Dean S. Adler
----------------------------
Dean S. Adler, President
[Signatures continued on next page]
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LUBERT-ADLER CAPITAL REAL ESTATE
OPPORTUNITY FUND, L.P.
By: IL PARTNERS, L.P., its General Partner
By: L&A Management, Inc., its
General Partner
By: /s/ Dean S. Adler
----------------------------
Dean S. Adler, President
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