Registration Rights Agreement - Buffalo Wild Wings Inc., GMN Investors II LP, Regent Capital Partners LP, Carefree Capital Partners LP, Kenneth H. Dahlberg and James DIsbrow
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December
2, 1999, is among (a) BUFFALO WILD WINGS, INC., a Minnesota corporation (the
"Company"), (b) GMN INVESTORS II, L.P. ("GMN"), REGENT CAPITAL PARTNERS, L.P.
("RCP"), CAREFREE CAPITAL PARTNERS, LIMITED PARTNERSHIP, A WYOMING LIMITED
PARTNERSHIP ("CC"), KENNETH H. DAHLBERG ("Dahlberg"), JAMES DISBROW ("Disbrow")
(GMN, RCP, CC, Dahlberg and Disbrow being collectively referred to herein as the
"Investors"), and (c) each other Person who becomes a party to this Agreement
upon acceptance by the Company of an Instrument of Accession in the form of
Schedule 1 hereto (an "Instrument of Accession") executed by such Person. The
Investors and each other Person who becomes a party hereto as aforesaid are
referred to collectively herein as the "Holders" and each individually as a
"Holder".
This Agreement is made in connection with a Securities Purchase Agreement
of even date herewith between the Company, the Investors and the additional
investors listed on Exhibit A attached thereto (the "Purchase Agreement"). In
order to induce the Investors to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used herein, the following terms have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means collectively, the Company's Common Stock, $.01 par
value per share.
"Company" has the meaning specified in the preamble hereto.
"Demand Registration" has the meaning specified in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means one of the Holders identified in the introductory paragraph
to this Agreement or such other Person to whom such Holder shall have assigned
or transferred such Holder's Registrable Securities in accordance with the
Stockholders' Agreement and Section 12(g) of this Agreement.
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"Indemnified Party" has the meaning specified in Section 8(b) hereof.
"Indemnifying Party" has the meaning specified in Section 8(b) hereof.
"Instrument of Accession" has the meaning specified in the preamble hereto.
"NASDAQ" has the meaning specified in Section 5(a)(vi).
"Person" means any individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Piggyback Registration" has the meaning specified in Section 3(a).
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any Prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Public Sale" means any sale of Common Stock to the public pursuant to a
public offering registered under the Securities Act, or to the public through a
broker or market-maker pursuant to the provisions of Rule 144 (or any successor
rule) adopted under the Securities Act.
"Purchase Agreement" has the meaning specified in the preamble hereto.
"registered" and "registration" means a registration effected by preparing
and filing a Registration Statement in compliance with the Securities Act and
the declaration or ordering by the Commission of effectiveness of such
Registration Statement.
"Registrable Securities" means, at any time, all of the then issued and
outstanding (a) shares of Common Stock issued or issuable upon exercise of the
Warrants in accordance with their terms, (b) shares of Common Stock issued or
issuable upon conversion of the Series A Preferred Stock by the Investors, (c)
capital stock or other securities into which or for which any such shares of
Common Stock shall have been converted or exchanged pursuant to any
recapitalization, reorganization or merger of the Company, and (d) shares of
capital stock issued with respect to the foregoing pursuant to a stock split or
stock dividend, provided that the foregoing capital stock shall be Registrable
Securities only so long as such capital stock has not been sold pursuant to a
Public Sale.
"Registration Expenses" has the meaning specified in Section 7.
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"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means the Company's Series A Preferred Stock,
par value $.01 per share.
"Stockholders' Agreement" means the Stockholders' Agreement of even date
herewith among the Company and the Investors.
"Underwriters' Maximum Number" means, for any Piggyback Registration,
Demand Registration or other registration which is an underwritten registration,
that number of securities to which such registration should, in the opinion of
the managing underwriters of such registration in the light of marketing
factors, be limited.
"Warrants" means the Common Stock Purchase Warrants of the Company issued
to the Investors pursuant to the Purchase Agreement and any other warrants
transferred to any Holder pursuant to the Purchase Agreement.
2. Demand Registration.
(a) Request for Demand Registration.
(i) Subject to the limitations contained in the following paragraphs
of this Section 2, the Holders of a majority of Registrable Securities may,
at any time and from time to time give to the Company, pursuant to this
subparagraph (i), a written request for the registration by the Company
under the Securities Act of all or any part of the Registrable Securities
of such Holder (such registration being herein called a "Demand
Registration"). Within ten (10) days after the receipt by the Company of
any such written request, the Company will give written notice of such
registration request to all Holders of Registrable Securities.
(ii) Subject to the limitations contained in the following paragraphs
of this Section 2, after the receipt of such written request for a Demand
Registration, (A) the Company will be obligated and required to include in
such Demand Registration all Registrable Securities with respect to which
the Company shall receive from Holders of Registrable Securities, within
thirty (30) days after the date on which the Company shall have given to
all Holders a written notice of registration request pursuant to Section
2(a)(i) hereof, the written requests of such Holders for inclusion in such
Demand Registration, and (B) the Company will use its best efforts in good
faith to effect promptly the registration of all such Registrable
Securities. All written requests made by
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Holders of Registrable Securities pursuant to this subparagraph (ii) will
specify the number of shares of Registrable Securities to be registered and
will also specify the intended method of disposition thereof.
(b) Limitations on Demand Registration.
(i) The Holders of Registrable Securities will not be entitled to
require the Company to effect (A) more than two (2) Demand Registration on
Form S-1 (or other comparable form adopted by the Commission), (B) any
Demand Registration on Form S-1 (or other comparable form adopted by the
Commission) unless Form S-3 (or any comparable form adopted by the
Commission) is not available for such Demand Registration, (C) any Demand
Registration if the aggregate number of Registrable Securities requested to
be registered pursuant to such Demand Registration is less than five
percent (5%) of the number of shares of Common Stock then outstanding (on a
fully-diluted basis), or (D) any Demand Registration prior to the closing
of the initial public offering of the Company's Common Stock.
(ii) Any registration initiated by Holders of Registrable Securities
as a Demand Registration pursuant to Section 2(a) hereof shall not count as
a Demand Registration for purposes of Section 2(b)(i) hereof (A) unless and
until such registration shall have become effective and all Registrable
Securities requested to be included in such registration shall have been
actually sold and (B) if such Holders withdraw their request for a Demand
Registration at any time because such Holders (1) reasonably believed that
the Registration Statement or Prospectus contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements made therein (in the case of
the Prospectus, in the light of the circumstances under which they were
made) not misleading, (2) notified the Company of such fact and requested
that the Company correct such alleged misstatement or omission and (3) the
Company has refused to correct such alleged misstatement or omission.
(iii) Notwithstanding the foregoing, the Company shall not be
obligated to effect any Demand Registration pursuant to Section 2(a) if, in
the good faith determination of the Board of Directors, the filing of any
registration statement or any amendment or supplement thereto would
adversely affect a material proposed or pending acquisition, merger or
similar corporate event to which the Company is or expects to be a party.
In the event of such determination by the Board of Directors, the Company
may, at its option, direct (a "Directive") in writing within ten (10) days
of receipt of such request for a Demand Registration pursuant to Section
2(a) that such Demand Registration be delayed (and, if a majority of the
holders of Registrable Securities initiating such request so elect,
withdrawn) for a period not in excess of one hundred twenty (120) days from
the date of such Directive, which right to delay may be exercised by the
Company not more
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than once in any twelve-month period. In the event that, following a
request pursuant to Section 2(a) the Holders of Registrable Securities
shall withdraw such Demand Registration, or if the Demand Registration is
delayed as set forth above, then such Demand Registration shall be deemed
to have been so withdrawn or delayed, as the case may be, and if withdrawn
shall not count as a Demand Registration for purposes of Section 2(b)(i).
(iv) The Company shall not be obligated or required to effect the
Demand Registration of any Registrable Securities pursuant to Section 2(a)
hereof during the period commencing on the date falling thirty (30) days
prior to the Company's estimated date of filing of, and ending on the date
180 days following the effective date of, any Registration Statement
pertaining to any underwritten registration initiated by the Company, for
the account of the Company, if the written request of Holders for such
Demand Registration pursuant to Section 2(a)(i) hereof shall have been
received by the Company after the Company shall have given to all Holders
of Registrable Securities a written notice stating that the Company is
commencing an underwritten registration initiated by the Company; provided,
however, that the Company will use its best efforts in good faith to cause
any such Registration Statement to be filed and to become effective as
expeditiously as shall be reasonably possible.
(c) Priority on Demand Registrations. If the managing underwriters in any
underwritten Demand Registration shall give written advice to the Company and
the Holders of Registrable Securities to be included in such registration of an
Underwriters' Maximum Number, then: (i) the Company will be obligated and
required to include in such registration that number of Registrable Securities
requested by the Holders thereof to be included in such registration which does
not exceed the Underwriters' Maximum Number, and such number of Registrable
Securities shall be allocated pro rata among the Holders of such Registrable
Securities on the basis of the number of Registrable Securities requested to be
included therein by each such Holder; (ii) if the Underwriters' Maximum Number
exceeds the number of Registrable Securities requested by the Holders thereof to
be included in such registration, then the Company will be entitled to include
in such registration that number of securities which shall have been requested
by the Company to be included in such registration for the account of the
Company and which shall not be greater than such excess; and (iii) if the
Underwriters' Maximum Number exceeds the sum of the number of Registrable
Securities which the Company shall be required to include in such Demand
Registration and the number of securities which the Company proposes to offer
and sell for its own account in such registration, then the Company may include
in such registration that number of other securities which persons (other than
the Holders as such) shall have requested be included in such registration and
which shall not be greater than such excess. Neither the Company nor any of its
stockholders (other than Holders of Registrable Securities) shall be entitled to
include any securities in any underwritten Demand Registration unless the
Company or such stockholders (as the case may be) shall have agreed in writing
to sell such securities
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on the same terms and conditions as shall apply to the Registrable Securities to
be included in such Demand Registration.
(d) Selection of Underwriters. The Holders of a majority of the
Registrable Securities to be included in any Demand Registration shall determine
whether or not such Demand Registration shall be underwritten and shall select
the investment banker(s) and managing underwriter(s) to administer such
offering.
3. Piggyback Registrations.
(a) Rights to Piggyback.
(i) If (and on each occasion that) the Company proposes to register
any of its securities under the Securities Act either for the Company's own
account or for the account of any of its stockholders (other than for
Holders pursuant to Section 2 hereof entitled to participate in a
registration) (each such registration not withdrawn or abandoned prior to
the effective date thereof being herein called a "Piggyback Registration"),
the Company will give written notice to all Holders of Registrable
Securities of such proposal not later than the earlier to occur of (A) the
tenth day following the receipt by the Company of notice of exercise of any
registration rights by any persons, and (B) the thirtieth day prior to the
anticipated filing date of such Piggyback Registration.
(ii) Subject to the provisions contained in paragraph (b) of this
Section 3 and in the last sentence of this subparagraph (ii), (A) the
Company will be obligated and required to include in each Piggyback
Registration all Registrable Securities with respect to which the Company
shall receive from Holders of Registrable Securities, within fifteen (15)
days after the date on which the Company shall have given written notice of
such Piggyback Registration to all Holders of Registrable Securities
pursuant to Section 3(a)(i) hereof, the written requests of such Holders
for inclusion in such Piggyback Registration, and (B) the Company will use
its best efforts in good faith to effect promptly the registration of all
such Registrable Securities. The Holders of Registrable Securities shall be
permitted to withdraw all or any part of the Registrable Securities of such
Holders from any Piggyback Registration at any time prior to the effective
date of such Piggyback Registration unless such Holders of Registrable
Securities shall have entered into a written agreement with the Company's
underwriters establishing the terms and conditions under which such Holders
would be obligated to sell such securities in such Piggyback Registration.
The Company will not be obligated or required to include any Registrable
Securities in any registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 of the Commission is
applicable.
(b) Priority on Piggyback Registrations. If a Piggyback Registration is an
underwritten registration, and the managing underwriters shall give written
advice to
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the Company of an Underwriters' Maximum Number, then: (i) the Company shall be
entitled to include in such registration that number of securities which the
Company proposes to offer and sell for its own account in such registration and
which does not exceed the Underwriters' Maximum Number; (ii) if the
Underwriters' Maximum Number exceeds the number of securities which the Company
proposes to offer and sell for its own account in such registration, then the
Company will be obligated and required to include in such registration that
number of Registrable Securities requested by the Holders thereof to be included
in such registration and which does not exceed such excess and such Registrable
Securities shall be allocated pro rata among the Holders thereof on the basis of
the number of Registrable Securities requested to be included therein by each
such Holder; and (iii) if the Underwriters' Maximum Number exceeds the sum of
the number of Registrable Securities which the Company shall be required to
include in such registration pursuant to clause (ii) and the number of
securities which the Company proposes to offer and sell for its own account in
such registration, then the Company may include in such registration that number
of other securities which persons shall have requested be included in such
registration and which shall not be greater than such excess.
(c) Selection of Underwriters. In any Piggyback Registration, the Company
shall (unless the Company shall otherwise agree) have the right to select the
investment bankers and managing underwriters in such registration.
4. Lock-up Agreements.
(a) Restrictions on Public Sale by Holders of Registrable Securities. Each
Holder of Registrable Securities, if the Company or the managing underwriters so
request in connection with any underwritten registration of the Company's
securities, will not, without the prior written consent of the Company or such
underwriters, effect any public sale or other distribution of any equity
securities of the Company, including any sale pursuant to Rule 144, during the
seven (7) days prior to, and (i) with respect to any Holder of Registrable
Securities that is an institutional investor, during the ninety (90) day period
commencing on the effective date of such underwritten registration and (ii) with
respect to all other Holders of Registrable Securities, during the one hundred
eighty (180) day period commencing on, the effective date of such underwritten
registration, except in connection with such underwritten registration.
(b) Restrictions on Public Sale by the Company. The Company agrees not to
effect any public sale or other distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period commencing on the seventh day prior to, and ending
on the one hundred eightieth (180th) day following, the effective date of any
underwritten Demand or Piggyback Registration, except in connection with any
such underwritten registration and except for any offering pursuant to an
employee benefit plan and registered on Form S-8 (or any successor form).
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5. Registration Procedures.
(a) Whenever the Holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its best efforts to
cause such Registration Statement to become effective (provided, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, the Company will furnish to counsel selected by the
holders of Registrable Securities covered by such Registration Statement,
copies of all such documents proposed to be filed, which documents will be
subject to the timely review of such counsel and the Company will not file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto, including documents incorporated by reference, to which
the Holders of a majority of the Registrable Securities covered by such
Registration Statement shall reasonably object);
(ii) prepare and file with the 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 not more than six (6) 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 effective
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement and cause the
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(iii) upon request, furnish to each seller of Registrable Securities
such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement
(including each preliminary Prospectus and each Prospectus filed under Rule
424 of the Securities Act) and such other documents as each such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each such seller (it being understood that
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by such seller in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto);
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as
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any seller reasonably requests, use its best efforts to keep each such
registration or qualification effective, including through new filings,
amendments or renewals, during the period such Registration Statement is
required to be kept effective, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided that the Company will not be
required (A) to qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this subparagraph
(a)(iv), (B) to subject itself to taxation in any such jurisdiction or (C)
to consent to general service of process in any such jurisdiction;
(v) notify each seller of such Registrable Securities, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
Prospectus included in such Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company will promptly prepare (and, when completed, give notice to each
seller of Registrable Securities) 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; provided that upon such notification
by the Company, each seller of such Registrable Securities will not offer
or sell such Registrable Securities until the Company has notified such
seller that it has prepared a supplement or amendment to such Prospectus
and delivered copies of such supplement or amendment to such Seller;
(vi) cause all such Registrable Securities to be listed, prior to
the date of the first sale of such Registrable Securities pursuant to such
registration, on each securities exchange on which similar securities
issued by the Company are then listed and, if not so listed, to be listed
with the National Association of Securities Dealers automated quotation
system ("NASDAQ");
(vii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement;
(viii) enter into all such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including,
without limitation, effecting a stock split or a combination of shares);
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(ix) make available for inspection on a confidential basis by any
seller, 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 (in each case after reasonable
prior notice), 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 on a
confidential basis all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(x) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company within the meaning of Section 15 of the
Securities Act, to participate in the preparation of such registration or
comparable statement and to permit the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of
such holder and its counsel should be included, provided that such material
shall be furnished under such circumstances as shall cause it to be subject
to the indemnification provisions provided pursuant to Section 8(b) hereof;
(xi) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related Prospectus or suspending the
qualification of any Registrable Securities included in such Registration
Statement for sale in any jurisdiction, the Company will use its best
efforts promptly to obtain the withdrawal of such order;
(xii) if requested by the managing underwriter or underwriters or any
holder of Registrable Securities in connection with any sale pursuant to a
Registration Statement, promptly incorporate in a Prospectus supplement or
post-effective amendment such information relating to such underwriting as
the managing underwriter or underwriters or such holder reasonably requests
to be included therein, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such Prospectus supplement or
post-effective amendment;
(xiii) cooperate with the holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be sold under such
registration, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such holders may request;
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(xiv) use its best efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or
authorities within the United States and having jurisdiction over the
Company as may reasonably be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xv) use its best efforts to obtain:
(A) at the time of effectiveness of each registration, a
"comfort letter" from the Company's independent certified public
accountants covering such matters of the type customarily covered by
"cold comfort letters" as the Holders of a majority of the Registrable
Securities covered by such registration and the underwriters
reasonably request; and
(B) at the time of any underwritten sale pursuant to a
Registration Statement, a "bring-down comfort letter", dated as of the
date of such sale, from the Company's independent certified public
accountants covering such matters of the type customarily covered by
comfort letters as the Holders of a majority of the Registrable
Securities covered by such Registration Statement and the underwriters
reasonably request;
(xvi) use its best efforts to obtain, at the time of effectiveness of
each Piggyback Registration and at the time of any sale pursuant to each
registration, an opinion or opinions, favorable in form and scope to the
Holders of a majority of the Registrable Securities covered by such
registration, from counsel to the Company in customary form; and
(xvii) otherwise comply with all applicable rules and regulations of
the Commission, and make generally available to its securityholders (as
contemplated by Section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities Act no
later than ninety (90) days after the end of the twelve month period
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover said twelve month period.
6. Cooperation by Prospective Sellers, Etc.
(a) Each prospective seller of Registrable Securities will furnish to the
Company in writing such information as the Company may reasonably require from
such seller, and otherwise reasonably cooperate with the Company in connection
with any Registration Statement with respect to such Registrable Securities.
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(b) The failure of any prospective seller of Registrable Securities to
furnish any information or documents in accordance with any provision contained
in this Agreement shall not affect the obligations of the Company under this
Agreement to any remaining sellers who furnish such information and documents
unless in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the viability of the offering or the legality
of the Registration Statement or the underlying offering.
(c) The Holders of Registrable Securities included in any Registration
Statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update such Registration Statement or Prospectus; but the
obligations of the Company with respect to maintaining any Registration
Statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect.
(d) At the end of any period during which the Company is obligated to keep
any Registration Statement current and effective as provided by Section 5 hereof
(and any extensions thereof required by the preceding paragraph (c) of this
Section 6), the Holders of Registrable Securities included in such Registration
Statement shall discontinue sales of shares pursuant to such Registration
Statement upon receipt of notice from the Company of its intention to remove
from registration the shares covered by such Registration Statement which remain
unsold, and such Holders shall notify the Company of the number of shares
registered which remain unsold promptly after receipt of such notice from the
Company.
(e) Notwithstanding any other provision herein to the contrary, no Holder
of Registrable Securities which constitute warrants or options shall be required
to exercise such warrants or options in connection with any registration until
the actual sale of the shares of Common Stock issuable upon exercise of such
warrants or options. The Company shall enter into such agreements and shall
otherwise cooperate with the Holders of Registrable Securities in order to
ensure that such Holders are not required to exercise any warrants or options
prior to the date of the actual sale of the shares of Common Stock issuable upon
exercise of such warrants or options.
7. Registration Expenses.
(a) All costs and expenses incurred or sustained in connection with or
arising out of each registration pursuant to Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with the blue sky
qualification of Registrable Securities), printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of one counsel representing the
Holders of Registrable Securities, such counsel to be selected by the Holders of
a majority of the Registrable Securities to be included in such
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registration, fees and disbursements of all independent certified public
accountants (including the expenses relating to the preparation and delivery of
any special audit or "cold comfort" letters required by or incident to such
registration), and fees and disbursements of underwriters (excluding discounts
and commissions), the reasonable fees and expenses of any special experts
retained by the Company of its own initiative or at the request of the managing
underwriters in connection with such registration, and fees and expenses of all
(if any) other persons retained by the Company (all such costs and expenses
being herein called, collectively, the "Registration Expenses"), will be borne
and paid by the Company. The Company will, in any case, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange on which
similar securities of the Company are then listed.
(b) The Company will not bear the cost of nor pay for any stock transfer
taxes imposed in respect of the transfer of any Registrable Securities to any
purchaser thereof by any Holder of Registrable Securities in connection with any
registration of Registrable Securities pursuant to this Agreement.
(c) To the extent that Registration Expenses incident to any registration
are, under the terms of this Agreement, not required to be paid by the Company,
each Holder of Registrable Securities included in such registration will pay all
Registration Expenses which are clearly solely attributable to the registration
of such Holder's Registrable Securities so included in such registration, and
all other Registration Expenses not so attributable to one Holder will be borne
and paid by all sellers of securities included in such registration in
proportion to the number of securities so included by each such seller.
8. Indemnification.
(a) Indemnification by the Company. The Company will indemnify each Holder
requesting or joining in a registration and each underwriter of the securities
so registered, the officers, directors and partners of each such Person and each
Person who controls any thereof (within the meaning of the Securities Act)
against any and all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of any material fact contained in any Prospectus, offering
circular or other document incident to any registration, qualification or
compliance (or in any related Registration Statement, notification or the like)
or any omission (or alleged omission) to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
any action or inaction required of the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, underwriter, officer, director, partner and controlling person for
any legal and any
<PAGE>
-14-
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company in an
instrument duly executed by such Holder, underwriter, officer, director, partner
or controlling person and stated to be specifically for use in such Prospectus,
offering circular or other document.
(b) Indemnification by Each Holder. Each Holder requesting or joining in a
registration will indemnify each underwriter of the securities so registered,
the Company and its officers and directors and each person, if any, who controls
any thereof (within the meaning of the Securities Act) and their respective
successors in title and assigns against any and all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of any material fact contained in
any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statement therein not misleading, and such Holder will reimburse each
underwriter, the Company and each other person indemnified pursuant to this
paragraph (b) for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that this paragraph (b) shall apply only
if (and only to the extent that) such statement or omission was made in reliance
upon written information furnished to such underwriter or the Company in an
instrument duly executed by such Holder and stated to be specifically for use in
such Prospectus, offering circular or other document (or related Registration
Statement, notification or the like) or any amendment or supplement thereto;
and, provided further, that each Holder's liability hereunder with respect to
any particular registration shall be limited to an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.
(c) Indemnification Proceedings. Each party entitled to indemnification
pursuant to this Section 8 (the "Indemnified Party") shall give notice to the
party required to provide indemnification pursuant to this Section 8 (the
"Indemnifying Party") promptly after such Indemnified Party acquires actual
knowledge of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
acceptable to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; and provided, further, that the failure
by any Indemnified Party to give notice as provided in this paragraph (c) shall
not relieve the Indemnifying Party of its obligations under this Section 8
except to the extent that the failure results in a failure of actual notice to
the Indemnifying Party and such Indemnifying Party is damaged solely as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or
<PAGE>
-15-
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. The reimbursement required by this Section 8 shall be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
9. Contribution in Lieu of Indemnification. If the indemnification
provided for in Section 8 hereof is unavailable to a party that would have been
an Indemnified Party under any such section in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each party that would have been an Indemnifying Party thereunder shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) 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 in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or such Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each Holder of
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro-rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding any provision of this Section 9 to the contrary, (a)
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 and (b) each Holder's
liability hereunder with respect to any particular registration shall be limited
to an amount equal to the net proceeds received by such Holder from the
Registrable Securities sold by such Holder in such registration.
10. Rule 144 Requirements; Form S-3. From time to time after the earlier
to occur of (a) the ninetieth day following the date on which there shall first
become effective a Registration Statement filed by the Company under the
Securities Act, or (b) the date on which the Company shall register a class of
securities under Section 12 of the Exchange Act, the Company will make every
effort in good faith to take all steps necessary to ensure that the Company will
be eligible to register securities on Form S-3 (or any comparable form adopted
by the Commission) as soon thereafter as possible, and to make publicly
available and available to the Holders of Registrable
<PAGE>
-16-
Securities, pursuant to Rule 144 or Rule 144A of the Commission under the
Securities Act, such information as shall be necessary to enable the Holders of
Registrable Securities to make sales of Registrable Securities pursuant to such
Rules. The Company will furnish to any Holder of Registrable Securities, upon
request made by such Holder at any time after the undertaking of the Company in
the preceding sentence shall have first become effective, a written statement
signed by the Company, addressed to such Holder, describing briefly the action
the Company has taken or proposes to take to comply with the current public
information requirements of Rule 144 and Rule 144A. The Company will, at the
request of any Holder of Registrable Securities, upon receipt from such Holder
of a certificate certifying (i) that such Holder has held such Registrable
Securities for a period of not less than one (1) year, (ii) that such Holder has
not been an affiliate (as defined in Rule 144) of the Company for more than the
ninety (90) preceding days, and (iii) as to such other matters as may be
appropriate in accordance with such Rule, remove from the stock certificates
representing such Registrable Securities that portion of any restrictive legend
which relates to the registration provisions of the Securities Act.
11. Participation in Underwritten Registrations. No Person may participate
in any underwritten registration pursuant to this Agreement unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the persons entitled, under the provisions
hereof, to approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements. Any Holder of Registrable Securities to be included in any
underwritten registration shall be entitled at any time to withdraw such
Registrable Securities from such registration prior to its effective date in the
event that such Holder shall disapprove of any of the terms of the related
underwriting agreement.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not previously entered
into any agreement with respect to its Common Stock granting any registration
rights to any Person, and will not on or after the date of this Agreement enter
into any agreement with respect to its securities which grants demand
registration rights to anyone or which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless such amendment, modification, supplement, waiver or consent is
approved in writing by the Holders of at least 50.1% of the Registrable
Securities.
(c) Registrable Securities Held by the Company. Whenever the consent or
approval of Holders of Registrable Securities is required pursuant to this
Agreement,
<PAGE>
-17-
Registrable Securities held by the Company shall not be counted in determining
whether such consent or approval was duly and properly given by such Holders.
(d) Term. The agreements of the Company contained in this Agreement shall
continue in full force and effect so long as any Holder holds any Registrable
Securities.
(e) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(f) Notices. Any notice provided for in this Agreement will be in writing
and will be deemed properly delivered if either personally delivered or sent by
overnight courier or telecopier or mailed certified or registered mail, return
receipt requested, postage prepaid, to the recipient at the address specified
below:
(i) if to a Holder, at such Holder's address on the stock transfer
books of the Company; and
(ii) if to the Company, at:
Buffalo Wild Wings, Inc.
1919 Interchange Tower
600 S. Highway 169
Minneapolis, Minnesota 55426
Attention: President
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(f). Any such notice shall be effective
(A) if delivered personally or by telecopy, when received, (B) if sent by
overnight courier, when receipted for, and (C) if mailed, five (5) days after
being mailed as described above.
(g) Successors and Assigns. This Agreement and the rights of any Holder
hereunder may be assigned to, and shall inure to the benefit of, any Person to
whom such Holder transfers Registrable Securities, provided that such transfer
is made in compliance with the provisions of the Stockholders' Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of Accession.
(h) Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when
<PAGE>
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so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
(j) Governing Law. The validity, performance, construction and effect of
this Agreement shall be governed by and construed in accordance with the
internal laws of the State of Minnesota, without giving effect to principles of
conflicts of law.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[The remainder of this page is intentionally left blank]
<PAGE>
-19-
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as an instrument under seal as of the date first written above.
BUFFALO WILD WINGS, INC.
By /s/ Sally J. Smith
-------------------------------------
Sally J. Smith, Chief Executive
Officer and President
GMN INVESTORS II, L.P.
By: GMN INVESTORS LLC,
its General Partner
By: /s/ James J. Goodman
-------------------------------------
James J. Goodman
President
REGENT CAPITAL PARTNERS, L.P.
By: REGENT CAPITAL HOLDINGS II, L.P.,
its General Partner
By: REGENT CAPITAL HOLDINGS INC.,
its General Partner
By: /s/ J. Oliver Maggard
-------------------------------------
J. Oliver Maggard
Managing Director
<PAGE>
-20-
CAREFREE CAPITAL PARTNERS, LIMITED
PARTNERSHIP, A WYOMING LIMITED
PARTNERSHIP
By: CAREFREE CAPITAL, INC.,
its general partner
By: /s/ Kenneth H. Dahlberg
--------------------------------
Name: Kenneth H. Dahlberg
Title: Chairman
/s/ Kenneth H. Dahlberg
-----------------------------------
Kenneth H. Dahlberg
/s/ James Disbrow
-----------------------------------
James Disbrow
<PAGE>
-21-
SCHEDULE 1
-------- -
TO REGISTRATION
-- ------------
RIGHTS AGREEMENT
------ ---------
Instrument of Accession
---------- -- ---------
Reference is made to that certain Registration Rights Agreement dated as of
December 2, 1999, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Buffalo Wild
Wings, Inc., a Minnesota corporation (the "Company"), and the Holders (as
defined therein).
The undersigned, _____________________, [in order to become] [is] the owner
or holder of ______ shares of the Common Stock, $.01 par value per share (the
"Shares") of the Company [and] hereby agrees that by his [her] execution hereof
the undersigned is a Holder party to the Registration Rights Agreement subject
to all of the restrictions and conditions applicable to Holders set forth in
such Registration Rights Agreement, and all of the Shares [purchased by the
undersigned in connection herewith] [owned by the undersigned as of the date
hereof] (and any and all shares of stock of the Company issued in respect
thereof) are subject to all the restrictions and conditions applicable to
Registrable Securities as set forth in the Registration Rights Agreement. This
Instrument of Accession shall take effect and shall become a part of said
Registration Rights Agreement immediately upon acceptance thereof by the
Company.
Executed as of the date set forth below under the laws of the State of
Minnesota.
Signature:
----------------------------
Address:
----------------------------
----------------------------
----------------------------
Date:
----------------------------
Accepted:
BUFFALO WILD WINGS, INC.
By:
------------------------------------
Date:
----------------------------------