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1: 8-K Current Report -- form8k_082203 HTML 33K
4: EX-4 Amen- Restated Reg Rights HTML 19K
3: EX-4 Amend Reg Rights HTML 113K
2: EX-4 Reg Rights Agreement HTML 93K
5: EX-4 Warrant Agrmt HTML 72K
7: EX-10 Acknowlege Guarantee HTML 33K
12: EX-10 Amend No. 1 HTML 20K
16: EX-10 Exclusivity Agrmt HTML 25K
6: EX-10 Fifth Amend to Lease HTML 15K
14: EX-10 First Amend Svc Agrmt HTML 17K
10: EX-10 Letter Agreement HTML 10K
15: EX-10 Second Amend Svc Agrmt HTML 20K
8: EX-10 Servicing Agreement HTML 59K
13: EX-10 Servicing Agreement HTML 130K
11: EX-10 Servicing Agreement 12-27-00 HTML 29K
9: EX-10 Supplement to Svc Agrmt HTML 71K
17: EX-21 Subsidiaries HTML 7K
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of the 31st day
of October, 2000, among MCM Capital Group, Inc., a Delaware corporation (the "Company"), C.P. International
Investments Limited, a Bahamian company (together with its Affiliated Stockholders (as herein defined), if any,
"CPII"), CTW Funding, LLC, a Delaware limited liability company (together with its Affiliated Stockholders, if
any, "CTW"), and the MCM Holding Distributees Majority (together with each of the persons whose names are listed
on Schedule A hereto and their respective Affiliated Stockholders, if any, the "MCM Holding Distributees"). This
Agreement amends and restates in its entirety the First Registration Rights Agreement (as defined below).
Capitalized terms used but not otherwise defined herein have their respective meanings set forth in Section 11.
WHEREAS, Midland Credit Management, Inc., a Kansas Corporation and wholly owned subsidiary of the
Company ("Midland"), desires to enter into that certain Credit and Security Agreement, dated as of October 31,2000 (the "Credit Agreement"), between Midland and CTW, pursuant to which CTW will make available to Midland a
$2,000,000 credit facility; and
WHEREAS, to induce CTW to enter into the Credit Agreement, the Company has agreed (i ) to issue to
CTW, warrants (the "Warrants") to purchase up to 100,000 shares of Common Stock, pursuant to a Warrant
Agreement, dated as of October 31, 2000 (the "Warrant Agreement"), and (ii) to grant certain registration
rights to CTW with respect to the Common Stock underlying the Warrants; and
WHEREAS, the Company, CPE, MCM Holding Company LLC, a New York limited liability company, and the MCM
Holding Distributees, entered into that certain Registration Rights Agreement, dated as of June 30, 1999 (the
"First Registration Rights Agreement"): and
WHEREAS, MCM Holding Company LLC was dissolved on December 2,1999; and
WHEREAS, pursuant to Section 12.3 of the First Registration Rights Agreement, the First Registration
Rights Agreement may be amended, modified or supplemented by the Company with the written consent of CPU and
the MCM Holding Distributees Majority; and
WHEREAS, the Company desires to amend and restate the First Registration Rights Agreement; and
WHEREAS, the parties acknowledge that Nelson Peltz, Peter W. May and Triarc Companies, Inc. are the
direct or indirect beneficial owners of at least 51% of the Registrable Securities owned by the MCM Holding
Distributees as of the date hereof, and constitute the MCM Holding Distributees Majority, and are executing this
Agreement in such capacity regardless of the legal ownership pursuant to which such shares are beneficially
owned; and
WHEREAS, the Company, CPU, and the MCM Holding Distributees Majority, have to consent to, and into, this
Agreement, under which the Company will grant to CTW substantially the same registration rights granted to CPII,
MCM Holding Company LLC and the MCM Holding Distributees under the First Registration Rights Agreement, and which
Agreement will amend, restate and supercede in its entirety the First Registration Rights Agreement; and
WHEREAS, it is a condition of the execution and delivery by CTW of the Credit Agreement, that the
Company enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as follows:
1. Registrations Upon Request.1.1. Requests by Stockholders. At any time, the MCM Holding Distributees (as a group), CPII and CTW shall
each have the right to make requests that the Company effect up to two separate registrations under the Securities
Act of all or part of the Registrable Securities owned by them, respectively; provided that
(i) in the case of the MCM Holding Distributees, such right to request up to two registrations will be
exercisable by any MCM Holding Distributees owning singly or in the aggregate at least 25% of the then outstanding
Registrable Securities then owned by all MCM Holding Distributees (the "Qualified MCM Stockholders"), and
(ii) at any time when CPII or CTW owns fewer Registrable Securities than its Permitted Transferees, such
right of CPII and CTW to request up to two registrations will be exercisable by those entities or individuals
(whether acting individually or as a group), in each case, owning in excess of 50% of the outstanding Registrable
Securities then owned by CPII and its Permitted Transferees, or by CTW and its Permitted Transferees, as
applicable. For purposes of this Section 1.1 (ii), each holder of a Warrant shall be deemed the owner and holder of
the Registrable Securities issuable upon the exercise thereof.
A request made by any of the Qualified MCM Stockholders, CPII or its Permitted Transferees, or CTW or its
Permitted Transferees, pursuant to the immediately preceding sentence (in any such case, the "Requesting Party")
shall not be counted for purposes of the request limitations set forth above if (a) the Requesting Party determines
in its good faith judgment to withdraw the proposed registration of any Registrable Securities requested to be
registered pursuant to this Section 1.1 due to marketing or regulatory reasons, (b) the registration statement
relating to any such request is not declared effective within 90 days of the date such registration statement is
first filed with the Commission and the Requesting Party determines to withdraw the proposed registration, (c)
within 180 days after the registration relating to any such request has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental
agency or court for any reason and the Company fails to have such stop order, injunction or other order or
requirement removed, withdrawn or resolved to the Requesting Party's reasonable satisfaction within 30 days, (d)
more 10% of the Registrable Securities requested by the Requesting Party to be included in the registration are not
so included pursuant to Section 1.4, (e) the conditions to closing specified in the underwriting agreement or
purchase agreement entered into in connection with the registration relating to any such request are not satisfied
(other than as a result of a default or breach thereunder by the Requesting Party), or (f) the registration relating
to such request is preempted by a proposed Company registration, notice of which is given by the Company to the
Requesting Party pursuant to Section 1.5(b)(iii), and the Requesting Party determines to withdraw its registration
request prior to a registration statement relating thereto becoming effective.
Upon any such registration request, the Company will promptly, but in any event within 10 days, give
written notice of such request to all holders of Registrable Securities and thereupon the Company will, subject to
Sections 1.4 and 1.5, use its best efforts to effect the prompt registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the
Requesting Party, and
(ii) all other Registrable Securities which the Company has been requested to register by the
holders thereof by written request given to the Company by such holders within 10 days after the giving of
such written notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable Securities so to be registered in
accordance with the intended method or methods of disposition of each seller of such Registrable Securities.
1.2. Registration Statement Form. A registration requested pursuant to Section 1.1 shall be effected by
the filing of a registration statement on a form reasonably acceptable to the Requesting Party, it being understood
that the Company shall, where permitted under the Securities Act, seek to qualify for registration on Form S-3 (or
any other comparable form hereinafter adopted).
1.3. Expenses.The Company will pay all Registration Expenses in connection with any registration requested
under Section 1.1; provided that (a) each seller of Registrable Securities shall pay all Registration Expenses to
the extent required to be paid by such seller under applicable law and all underwriting discounts and commissions
and transfer taxes, if any, and (b) if, pursuant to clause (a) of Section 1.1, a Requesting Party determines in its
good faith judgment to withdraw the proposed registration of any Registrable Securities requested to be registered
pursuant to Section 1.1 due to marketing reasons after the filing of a registration statement with respect to such
Registrable Securities, the Requesting Party shall reimburse the Company for its reasonable out-of-pocket expenses
incurred in connection with the preparation and filing of such registration statement unless the Requesting Party
agrees in writing to have the withdrawn registration treated as one of its two registration requests permitted
pursuant to Section 1.1.
1.4. Priority in Demand Registrations. If a registration pursuant to Section 1.1 involves an underwritten
offering, and the managing underwriter (or, in the case of an offering which is not underwritten, a nationally
recognized investment banking firm) shall advise the Company in writing (with a copy to each Person requesting
registration of Registrable Securities) that, in its opinion, the number of securities requested and otherwise
proposed to be included in such registration exceeds the number which can be sold in such offering without
materially and adversely affecting the offering price or the market price of the Common Stock or would otherwise
jeopardize the offering, the Company will include in such registration to the extent of the number which the Company
is so advised can be sold in such offering without such material adverse effect, first, the Registrable Securities
of all Stockholders (including the Requesting Party), on a pro rata basis (based on the number of shares of
Registrable Securities owned by each such Stockholder), second the securities, if any, being sold by the Company,
and third, the securities, if any, of any other securities holder of the Company ..entitled to incidental
registration rights with respect thereto, subject to the limitations of Section 7.
1.5. No Company or Other Stockholder Initiated Registration; Deferral of Registration.
(a) After receipt of notice of a requested registration pursuant to Section 1.1, neither the Company nor any
other Stockholder shall initiate, without the consent of the Requesting Party, a registration of any Company
securities for its own account until 90 days after such registration has been effected or such registration has
been terminated.
(b) Notwithstanding the foregoing, the Company shall have the right to delay the filing or effectiveness,
but not the preparation, of a registration statement for any requested registration pursuant to Section 1.1 during
one or more periods aggregating not more than 90 days in any 12-month period during the term of this Agreement in
the event that (i) the Company would, in accordance with the written advice of its counsel, be required to disclose
in the prospectus contained in such registration statement information not otherwise required by law to be
publicly disclosed and (ii) the Company has pending or in process a material transaction, the disclosure of which
would, in the good "faith judgment of the Company's Board of Directors, materially and adversely affect the Company
or the transaction, or (iii) at the time of receipt of notice of a requested registration pursuant to Section 1.1
the Company was in the process of contemplating a registration of equity securities for its own account and (A) the
Company gives written notice thereof to the Requesting Party within 10 days after receipt of such registration
request and (B) a registration statement with respect to such Company initiated offering is filed within 60 days of
receipt of such notice from the Requesting Party.
2. Incidental Registrations. If the Company at any time proposes to register any of its equity securities
under the Securities Act for its own account (other than pursuant to a registration on Form S-4 or S-8 or any
successor form) it shall give written notice thereof to each Stockholder. If within 10 days after the receipt of any
such notice, any Stockholder requests that the company include all or any portion of the Registrable Securities
owned by such Stockholder in such registration (for purposes of this Section 2, each holder of a Warrant shall be
deemed the owner and holder of the Registrable Securities issuable upon the exercise thereof), then, subject to
subsection (a) below, the Company will give prompt written notice to all Stockholders. Upon the written request of
any Stockholder made within 10 days after the receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such holder and the intended method or methods of disposition
thereof), the Company will use its best efforts to effect the registration under the Securities Act of such
Registrable Securities on a pro rata basis (based on the number of shares of Registrable Securities owned by each
such requesting Stockholder) in accordance with such intended method or methods of disposition, provided that:
(a) without the prior written consent of the Stockholders holding at least 50% of the then outstanding
Registrable Securities, the Company shall not include any Registrable Securities of holders of
Registrable Securities other than the Stockholders in such proposed registration if it believes in good
faith that inclusion of such securities would not be in the best interests of the Company, provided
that the Company will include in such registration that number of Registrable Securities of the holders
of Registrable Securities that such managing underwriter and the Company determine would not be adverse
to the best interests of the Company and provided further that the Company shall give the holders of
Registrable Securities prompt notice after any such determination has been made (in lieu of the notice
otherwise required under the second sentence of this Section 2);
(b) if, at any time after giving written notice (pursuant to this Section 2) of its intention to register
equity securities and prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to register such equity
securities, the Company may, at its election, give written notice of such determination to each holder
of Registrable Securities and, thereupon, shall not be obligated to register any Registrable Securities
in connection with such registration (but shall nevertheless pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of the Stockholders to request that a
registration be effected under Section 1.1; and
(c) if in connection with a registration pursuant to this Section 2, the managing underwriter of such
registration (or, in the case of an offering that is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a copy to each holder of Registrable
Securities requesting registration thereof) that, in its opinion, the number of securities requested
and otherwise proposed to be included in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the offering price or the market price of the
Common Stock or would otherwise jeopardize the offering, then in the case of any registration pursuant
to this Section 2, the Company will include in such registration to the extent of the number which the
Company is so advised can be sold in such offering without such material adverse effect, first the
securities, if any, being sold by the Company, second, the Registrable Securities of the Stockholders,
on a pro rata basis (based on the number of shares of Registrable Securities owned by each such
Stockholder), third, the Registrable Securities of any other holder, on a pro rata basis (based on the
number of shares of Registrable Securities owned by each such holder), and fourth the securities, if
any, of any other securities holder of the Company entitled to incidental registration rights with
respect thereto, subject to the limitations of Section 7.
Notwithstanding the foregoing, the holders of Registrable Securities other than the
Stockholders will not be entitled to participate in any registration pursuant to this Section 2 to the extent
that the managing underwriter (or, in the case of an offering that is not underwritten, a nationally recognized
investment banker) determine in good faith and in writing (with a copy to each affected Person requesting
registration of Registrable Securities) that the participation of any such holder would adversely affect the
marketability or offering price of the securities being sold by the Company or any Stockholder in such
registration.
The Company will pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 2, provided that each seller of Registrable Securities
shall pay all Registration Expenses to the extent required to be paid by such seller under applicable law and
all underwriting discounts and commissions and transfer taxes, if any. No registration effected under this
Section 2 shall relieve the Company from its obligation to effect registrations under Sections 1.1.
3. Registration Procedures. If and whenever the Company is required to use its best efforts to effect
the registration of any Registrable Securities under the Securities Act as provided in Sections 1.1 and 2, the
Company will promptly:
(a) prepare, and as soon as practicable, but in any event within 60 days thereafter, file with the
Commission, a registration statement with respect to such Registrable Securities, make all required
filings with the NASD and use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable;
(b) prepare and promptly file with the Commission such amendments and post-effective 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 so long as is required to comply with the
provisions of the Securities Act and to complete the disposition of all securities covered by such
registration statement in accordance with the intended method or methods of disposition thereof, but in
no event for a period of more than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with the Commission in connection with such
registration to
(i) in the case of a registration pursuant to Section 1.1 or 2 in which CPII or CTW
is participating, counsel selected by CPII or CTW, or, at any time when CPII or CTW owns fewer
Registrable Securities than its Permitted Transferees, counsel selected by those entities or
individuals (whether acting individually or as a group), in each case, owning in excess of 50%
of the outstanding Registrable Securities then owned by CPII and its Permitted Transferees, or
by CTW and its Permitted Transferees, as applicable (for purposes of this Section 3(c)(i),
each holder of a Warrant shall be deemed the owner and holder of the Registrable Securities
issuable upon the exercise thereof), and
(ii) in the case of a registration pursuant to Section 1.1 or 2 in which MCM Holding
Distributees are participating, counsel selected by the holders of at least 51% of the
Registrable Securities proposed to be sold by such MCM Holding Distributees in connection with
such registration (such holders, the "Majority Holders"),
and such documents shall be subject to the review of such counsel and CPII, CTW, or their Permitted Transferees
or the Majority Holders, as the case may be, and the Company shall not file any registration statement or
amendment or post-effective amendment or supplement to such registration statement or the prospectus used in
connection therewith to which either such counsel or CPII, or CTW, or their Permitted Transferees or the
Majority Holders, as the case may be, shall have reasonably objected in writing on the grounds that such
amendment or supplement does not comply (explaining why) in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder.
(d) furnish to each seller of Registrable Securities, without charge, such
number of conformed copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits and documents filed therewith) and such number of copies
of the prospectus included in such registration statement (including each preliminary prospectus and
any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other documents, as such seller may
reasonably request in order to facilitate the disposition of the Registrable Securities owned by such
seller in accordance with the intended method or methods of disposition thereof;
(e) use its reasonable best efforts to register or qualify such Registrable Securities covered by such
registration statement under the securities or blue sky laws of such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may be necessary or advisable to
enable such seller to consummate the disposition of such Registrable Securities in such jurisdictions
in accordance with the intended method or methods of disposition thereof, provided that the Company
shall not for any such purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified, subject itself to taxation in any jurisdiction
wherein it is not so subject, or take any action which would subject it to general service of process
in any jurisdiction wherein it is not so subject;
(f) use its reasonable best efforts to cause all Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary by virtue of the business and operations of the Company to
enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(g) furnish to each seller of Registrable Securities a signed counterpart, addressed to the sellers, of
(i) an opinion of outside counsel for the Company experienced in
securities law matters, dated the effective date of the registration statement (or,
if such registration includes an underwritten public offering, the date of the
closing under the underwriting agreement), and
(ii) a "comfort" letter (unless the registration is pursuant to Section 2
and such a letter is not otherwise being furnished to the Company), dated the
effective date of such registration statement (and if such registration includes an
underwritten public offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have issued an audit
report on the Company's financial statements included in the registration statement,
covering such matters as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to the underwriters in underwritten public offerings
of securities, subject to such qualifications as are customary in opinions and
accountants' letters delivered in such circumstances;
(h) notify each seller of any Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event or existence of any fact as a result of which the
prospectus included in such registration statement as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then existing, and, as promptly as
is practicable, prepare and furnish to such seller a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers
of such securities such prospectus shall not include 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 not
misleading in light of the circumstances then existing;
(i) otherwise comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably practicable, an earnings statement of
the Company (in form complying with the provisions of Rule 158 under the Securities Act) covering the
period of at least 12 months, but not more than 18 months, beginning with the first month after the
effective date of such registration statement;
(j) notify each seller of any Registrable Securities covered by such registration
statement (i) when the prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the Commission for amendments or supplements to such
registration statement or to amend or to supplement such prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that purpose and (iv) of the suspension
of the qualification of such securities for offering or sale in any jurisdiction, or of the institution
of any proceedings for any of such purposes;
(k) use every reasonable effort to obtain the lifting of any stop order that might
be issued suspending the effectiveness of such registration statement as soon as practicable;
(l) use its reasonable best efforts (i) (A) to list such Registrable Securities on
any securities exchange on which the equity securities of the Company are then listed or, if no such
equity securities are then listed, on an exchange selected by the Company, if such listing is then
permitted under the rules of such exchange, or (a) if such listing is not practicable, to secure
designation of such securities as a NASDAQ "national market system security" within the meaning of Rule
IIAa2-l under the Exchange Act or, failing that, to secure NASDAQ authorization for such Registrable
Securities, and, without limiting the foregoing, to arrange for at least two market makers to register
as such with respect to such Registrable Securities with the NASD, and (ii) to provide a transfer agent
and registrar for such Registrable Securities not later than the effective date of such registration
statement and to instruct such transfer agent (A) to release any stop transfer order with respect to
the certificates with respect to the Registrable Securities being sold and (B) to furnish certificates
without restrictive legends representing ownership of the shares being sold, in such denominations
requested by the sellers of the Registrable Securities or the lead underwriter;
(m) enter into such agreements and take such other actions as the sellers of
Registrable Securities or the underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, including, without limitation, preparing for, and
participating in, such number of "road shows" and all such other customary selling efforts as the
underwriters reasonably request in order to expedite or facilitate such disposition;
(n) furnish to any holder of such Registrable Securities such information and
assistance as such holder may reasonably request in connection with any "due diligence" effort which
such seller deems appropriate; and
(o) use its best efforts to take all other steps necessary to effect the registration
of such Registrable Securities contemplated hereby.
As a condition to its registration of Registrable Securities of any prospective seller, the Company may
require such seller of any Registrable Securities as to which any registration is being effected to furnish to
the Company such information regarding such seller, its ownership of Registrable Securities and the disposition
of such Registrable Securities as the Company may from time to time reasonably request in writing and as shall
be required by law in connection therewith, together with such certificates, if any, as may be required to
permit the delivery of the opinions and comfort letters contemplated by Section 3(g) and the execution of the
underwriting agreement and the delivery of the documents required to be delivered thereunder. Each such holder
agrees to furnish promptly to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially misleading.
The Company agrees not to file or make any amendment to any registration statement with respect to any
Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any Registrable Securities covered thereby by name, or otherwise identifies such seller
as the holder of any Registrable Securities, without the consent of such seller, such consent not to be
unreasonably withheld or delayed, unless such disclosure is required by law.
By acquisition of Registrable Securities, each holder of such Registrable Securities shall be deemed to
have agreed that upon receipt of any notice from the Company of the happening of any event of the kind described
in Section 3(h), such holder will promptly discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3(h). If so directed by the Company,
each holder of Registrable Securities will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, in such holder's possession of the prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event that the Company shall give any such notice, the period
mentioned in Section 3(b) shall be extended by the number of days during the period from and including the date
of the giving of such notice to and including the date when each seller of any Registrable Securities covered by
such registration statement shall have received the copies of the supplemented or amended prospectus
contemplated by Section 3(h).
4. Underwritten Offerings.4.1. Underwriting Agreement. If requested by the underwriters for any underwritten offering pursuant to
a registration requested under Section 1.1 or 2, the Company shall enter into an underwriting agreement with the
underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the
underwriters and to a majority of the Stockholders participating in such registration. Any such underwriting
agreement shall contain such representations and warranties by the Company and such other terms and provisions
as are customarily contained in agreements of this type, including, without limitation and unless waived by all
Stockholders participating in such registration, indemnities to the effect and to the extent provided in Section
9. The holders of Registrable Securities to be distributed by such underwriter shall be parties to such
underwriting agreement and may, at their option, require that any or all of the representations and warranties
by, and the agreements on the part of, the Company to and for the benefit of such underwriters be made to and
for the benefit of such holders of Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be conditions precedent to the
obligations of such holders of Registrable Securities. No underwriting agreement (or other agreement in
connection with such offering) shall require any Stockholder, in its capacity as stockholder or controlling
Person, to make any representations or warranties to, or agreements with, the Company or the underwriters other
than representations, warranties or agreements regarding such holder, the ownership of such holder's Registrable
Securities and such holder's intended method or methods of disposition and any other representation required by
law or to finish any indemnity to any Person which is broader than the indemnity furnished by such holder
pursuant to Section 9.2.
4.2. Selection of Underwriters. If the Company at any time proposes to register any of its securities
under the Securities Act for sale for its own account pursuant to an underwritten offering in which holders of
Registrable Securities are participants, the Company will have the right to select the managing underwriter
(which shall be of nationally recognized standing) to administer the offering; provided, the Company must
obtain the prior approval of its selection of a managing underwriter, such approval not to be unreasonably
withheld, from any Stockholder who, individually or acting with a group, owns at least 20% of the aggregate
number of shares (or rights to acquire shares) of common stock proposed to be registered in the registration.
Notwithstanding the foregoing sentence, whenever a registration requested pursuant to Section 1.1 is for an
underwritten offering, the Requesting Party will have the right to select the managing underwriter (which shall
be of nationally recognized standing) to administer the offering, but only with the approval of the Company,
such approval not to be unreasonably withheld.
5. Holdback Agreements.(a) If and whenever the Company proposes to register any of its equity
securities under the Securities Act for its own account (other than on Form S-4 or S-8 or any successor form) or
is required to use its best efforts to effect the registration of any Registrable Securities under the
Securities Act pursuant to Section 1.1 or 2, each holder of Registrable Securities agrees by acquisition of such
Registrable Securities not to request registration under Section 1.1 of any Registrable Securities and, if it is
then an officer, director or the beneficial owner (determined in accordance with Rule 13d-3 under the Exchange
Act) of more than 5% of any class of the Company's equity securities (or any securities convertible into or
exchangeable or exercisable for any of such securities), not to effect any public sale or distribution of the
Company's equity securities (other than pursuant to such registration), within seven days prior to and 90 days
(unless advised in writing by the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any underwritten offering may agree) after the
effective date of the registration statement relating to such registration, except its part of such registration.
(b) The Company agrees not to effect any public sale or distribution of its equity securities
or securities convertible into or exchangeable or exercisable for any of such securities within seven days prior
to and 90 days (unless advised in writing by the managing underwriter that a longer period, not to exceed 180
days, is required, or such shorter period as the managing underwriter for any underwritten offering may agree)
after the effective date of any registration statement filed pursuant to Section 1.1 (except as part of such
registration or pursuant to a registration on Form S-4 or S-8 or any successor form). In addition, upon the
request of the managing underwriter, the Company shall use its reasonable best efforts to cause each officer,
director or beneficial owner (determined in accordance with Rule 13d-3 under the Exchange Act) of more than 5%
of any class of the Company's equity securities (or any securities convertible into or exchangeable or
exercisable for any of such securities), other than any such securities acquired in a public offering, to agree
not to effect any such public sale or distribution of such securities during such period, except as part of any
such registration if permitted, and to cause each such officer, director and beneficial holder to enter into a
similar agreement to such effect with the Company.
6. Preparation; Reasonable Investigation. In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities Act, the Company will give the
holders of such Registrable Securities so to be registered and their underwriters, if any, and their respective
counsel and accountants the opportunity to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such access to the financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries and such opportunities to discuss the business of the Company with
its officers and the independent public accountants who have issued audit reports on its financial statements as
shall be reasonably requested by such holders in connection with such registration statement.
7. No Grant of Future Registration Rights.The Company shall not, during the term of this Agreement, grant
to any Person (a) any other demand registration rights, or (b) any incidental registration rights that are of a
higher priority to the rights granted to the holders of Registrable Securities under Section 2 hereof, in each
case, without the prior written consent of the MCM Holding Distributees Majority, CPII and CTW, so long as the
MCM Holding Distributees (as a group), CPII and CTW respectively, continue to own at least 10% of the number of
shares of Common Stock owned thereby (or, in the case of CTW, shares of common stock Warrants, or a combination
of both, that represent, in any case and in the aggregate, at least 10% of the number of shares of Common Stock
issuable upon exercise of the Warrants owned thereby), respectively, on the date hereof. For purposes of this
Section 7, prior written consent required under this Section 7 must also be obtained from any of the Permitted
Transferees of the MCM Holding Distributees Majority, CPII and CTW, respectively, who at the time consent is
required, own at least 10% of the aggregate number of shares of Common Stock owned thereby (or, in the case of a
CTW Permitted Transferee, shares of common stock, Warrants, or a combination of both, that represent, in any case
and in the aggregate, at least 10% of the number of shares of Common Stock issuable upon exercise of the Warrants
owned thereby), respectively, on the date hereof.
8. [Reserved)
9. Indemnification.
9 1 Indemnification by the Company. In the event of any registration of any Registrable Securities
pursuant to this Agreement, the Company agrees to indemnify, defend and hold harmless (a) each seller of such
Registrable Securities, (b) the directors, members, stockholders, officers partners, employees, agents and
Affiliates of such seller, (c) each Person who participates as an underwriter in the offering or sale of such
securities, and (d) each person, if any who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any of the foregoing, against any and all losses, claims, damages, expenses or
other liabilities (or actions or proceedings in respect thereof), jointly or severally, directly or indirectly
based upon or arising out of (i) any untrue statement or alleged untrue statement of a fact contained in any
registration statement under which such Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein or used in connection with the
offering of securities covered thereby or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state a fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, claim, damage, liability, action, proceeding or expense arises out
of or is based upon (A) an untrue statement or omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such seller expressly for use in the preparation
thereof, or (B) any preliminary prospectus to the extent that any such loss claim, damage, liability, action or
proceeding results solely from the fact that the seller sold Registrable Securities to a person as to whom the
Company shall establish that there was not sent by commercially reasonable means, at or prior to the written
confirmation of such sale, a copy of the final prospectus in any case where such delivery is required by the
Securities Act, if the Company has previously furnished copies thereof in sufficient quantity to the seller or
the underwriters for such offering and the loss, claim, damage, liability, action or proceeding results from an
untrue statement or omission of a material fact contained in the preliminary prospectus that was corrected in
the final prospectus. The Company will reimburse each such indemnified party for any legal or any other expenses
reasonably incurred by them in connection with enforcing its rights hereunder or under the underwriting
agreement entered into in connection with such offering or investigating, preparing, pursuing or defending any
such loss, claim, damage, liability, action or proceeding. Such indemnity shall remain in full force and effect
regardless of any investigation made by such indemnified party and shall survive the transfer of such
Registrable Securities by such seller. If the Company is entitled to, and does, assume the defense of the
related action or proceedings provided herein, then the indemnity agreement contained in this Section 9.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such
settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld or
delayed). The Company shall also indemnify any underwriters of the Registrable Securities, their officers,
directors and employees, and each person who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with respect to indemnification of the
seller of Registrable Securities.
9.2. Indemnification by the Sellers.The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 1.1 or 2 that the Company shall
have received an undertaking reasonably satisfactory to it from each of the prospective sellers of such
Registrable Securities to indemnify and hold harmless, severally, not jointly, in the same manner and to the
same extent as set forth in Section 9.1, the Company, its directors, officers, employees, agents and each
person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company, but only with respect to any written information furnished to the Company by such
seller expressly for use in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. (The Company and the holders of the Registrable
Securities hereby acknowledge and agree that unless otherwise expressly agreed to in writing by such holders,
the only information furnished or to be furnished to the Company for use in any registration statement or
prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials
associated therewith are statements specifically relating to (a) transactions between such holder and its
Affiliates, on the one hand, and the Company, on the other hand, (b) the beneficial ownership of shares of
Common Stock by such holder and its Affiliates and (c) the name and address of such holder. If any additional
information about such holder or the plan of distribution (other than for an underwritten offering) is required
by law to be disclosed in any such document, then such holder shall not unreasonably withhold its agreement
referred to in the immediately preceding sentence of this Section 9.2.) Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such Registrable Securities by such seller. The
indemnity agreement contained in this Section 9.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such
seller (which consent shall not be unreasonably withheld or delayed). The indemnity provided by each seller of
Registrable Securities under this Section 9.2 shall be limited in amount to the net amount of proceeds actually
received by such seller from the sale of Registrable Securities pursuant to such registration statement giving
rise to such liability.
9.3. Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the preceding paragraphs of this
Section 9, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such action or proceeding, provided
that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 9, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party will be entitled to participate therein and to assume the
defense thereof jointly with any other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof except for the reasonable fees and expenses of any counsel retained by such
indemnified party to monitor such action or proceeding. Notwithstanding the foregoing, if such indemnified party
reasonably determines, based upon advice of independent counsel, that either a conflict of interest may exist
between the indemnified party and the indemnifying party with respect to such action and that it is advisable
for such indemnified party to be represented by separate counsel or that there may be one or more legal defenses
available to it which are different from or additional to those available to the indemnifying party, such
indemnified party may retain other counsel, reasonably satisfactory to the indemnifying party, to represent such
indemnified party, and the indemnifying party shall pay all reasonable fees and expenses of such counsel. No
indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of such
indemnified party, which consent shall not be unreasonably withheld, 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 of such claim or litigation. The
rights accorded to any indemnified party hereunder shall be in addition to any rights that such indemnified
party may have at common law, by separate agreement or otherwise.
9.4. Other Indemnification. Indemnification similar to that specified in the preceding paragraphs of
this Section 9 (with appropriate modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration (other than under the Securities Act) or other
qualification of such Registrable Securities under any federal or state law or regulation of any governmental
authority.
9.5. Indemnification Payments. Any indemnification required to be made by an indemnifying party pursuant
to this Section 9 shall be made by periodic payments to the indemnified party during the course of the action or
proceeding, as and when bills are received by such indemnifying party, with respect to an idemnifiable loss,
claim, damage, liability or expense incurred by such indemnified party.
9.6. Other Remedies. If for any reason the foregoing indemnity is unavailable, or is insufficient to
hold harmless an indemnified party, other than by reason of the exceptions provided therein, then the
indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities, actions, proceedings or expenses in such proportion as is appropriate to
reflect the relative benefits to and faults of the indemnifying party on the one hand and the indemnified party
on the other in connection with the offering of Registrable Securities and the statements or omissions or
alleged statements or omissions which resulted in such loss, claim, damage, liability, action, proceeding or
expense, as well as any other relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other things, whether the untrue
statement of a material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statements or omissions. No person guilty of fraudulent
misrepresentation (within the meaning of Section 1 l(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. No party shall be liable for
contribution under this Section 9.6 except to the extent as such party would have been liable to indemnify under
this Section 9 if such indemnification were enforceable under applicable law.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this
Section 9.6 were determined by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding paragraph.
10. Representations and Warranties. Each Stockholder, and in the case of the MCM Holding
Distributees, the MCM Holding Distributees Majority acting on behalf of the MCM Holding Distributees, severally
and not jointly, represents and warrants to the Company and each other Stockholder that:
(i) such Stockholder has the power, authority and capacity, (on in the case of any Stockholder
that is a corporation, limited liability company or limited partnership, all corporate, limited liability
company or limited partnership power and authority, as the case may be) to execute, deliver and perform this
Agreement;
(ii) in the case of a Stockholder that is a corporation, limited liability company or
limited partnership, the execution, delivery and performance of this Agreement by such Stockholder has been
duly and validly authorized and approved by all necessary corporate, limited liability company or limited
partnership action, as the case may be;
(iii) this Agreement has been duly and validly executed and delivered by such Stockholder
and constitutes a valid and legally binding obligation of such Stockholder, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating
to creditors' rights generally and general principles of equity; and
(iv) the execution, delivery and performance of this Agreement by such Stockholder does not
and will not violate the terms of or result in the acceleration of any obligation under (A) any material
contract, commitment or other material instrument to which such Stockholder is a party or by which such
Stockholder is bound, (B) in the case of a Stockholder that is a corporation, limited liability company or
limited partnership, the certificate of incorporation, certificate of formation, certificate of limited
partnership, by-laws, operating agreement or limited partnership agreement, as the case may be, or (C) any law,
statute, regulation, order or decree applicable to such Stockholder.
11. Definitions. For purposes of this Agreement, the following terms shall have the following
respective meanings:
Affiliate: (i) with respect to any Person, a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, such Person, and (ii) with
respect to any natural Person, (A) the spouse, parents and direct descendants of such Person, (B) the estate,
testamentary trust, trustees, executors, administrators, legatees or testamentary beneficiaries of such Person,
and (C) any trust established by such Person for the exclusive benefit of any of the foregoing Persons.
Affiliated Stockholder: with respect to CPII, CTW and the MCM Holding Distributees, each of
their respective Affiliates, in each case, if and so long as it owns any Registrable Securities and has agreed
in writing to be bound by the terms and conditions of this Agreement, a copy of which agreement shall have been
delivered to the Company.
Board: the board of directors of the Company. Commission: the
Securities and Exchange Commission.
Common Stock: the Common Stock of the Company, par value $.01 per share, and any securities
into which such Common Stock shall have been changed or any securities resulting from any reclassification of
such Common Stock.
Exchange Act: the Securities Exchange Act of 1934, as amended, or any successor federal
statute, and the rules and regulations thereunder which shall be in effect at the time.
Majority Holders: as defined in Section 3(c).
MCM Holding Distributees Majority: at any time, the owners of at least 51% of the Registrable
Securities then owned by the MCM Holding Distributees.
NASD: National Association of Securities Dealers, Inc. NASDAQ:
the Nasdaq National Market.
Permitted Transferee: as defined in Section 12.2 (and specifically including the distributees,
if any, of CTW, upon a dissolution, termination or other disposition of CTW which results in a distribution of
Registrable Securities or Warrants of CTW).
Person: an individual, corporation, partnership, limited liability company, joint venture,
association, trust or other entity or organization, including a government or political subdivision or an
agency or instrumentality, thereof.
Registrable Securities: (i) with respect to CPII, the MCM Holding Distributees or their
respective Permitted Transferees, the shares of Common Stock beneficially owned (within the meaning of Rule
13d-3 of the Exchange Act) by each of them (A) on June 30, 1999, and (B) issuable under, or issued upon
exercise of, the warrants issued pursuant to that certain Warrant Agreement dated as of January 12, 2000, by
and between the Company and Triarc Companies, Inc., and (ii) with respect to CTW or its Permitted Transferees,
the shares of Common Stock, issued or issuable, under the Warrants. As to any particular shares of Common
Stock, such securities shall cease to be Registrable Securities when (i) a registration statement with respect
to the sale of such securities shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) they shall have been sold to the
public pursuant to Rule 144 under the Securities Act, (iii) they shall have been otherwise transferred other
than to a Permitted Transferee and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in force or (iv) they shall have
ceased to be outstanding.
Registration Expenses: all expenses incident to the Company's performance of or compliance
with any registration pursuant to this Agreement, including, without limitation, (i) registration, filing and
NASD fees, (ii) fees and expenses of complying with securities or blue sky laws, (iii) fees and expenses
associated with listing securities on an exchange or NASDAQ, (iv) word processing, duplicating and printing
expenses, (v) messenger and delivery expenses, (vi) transfer agents', trustees', depositories', registrars' and
fiscal agents fees, (vii) fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort" letters, (viii) reasonable fees and
disbursements of any one counsel retained by the sellers of Registrable Securities, which counsel shall be
designated in the manner specified in Section 3 and (ix) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting discounts and commissions and transfer
taxes, if any.
Securities Act: the Securities Act of 1933, as amended, or any successor federal
statute, and the rules and regulations thereunder which shall be in effect at the time.
Stockholders: (i) CPII, CTW and each MCM Holding Distributee, in each case, (ii) each
Affiliated Stockholder, and (iii) each Permitted Transferee, in any case, if and so long as it owns any
Registrable Securities or Warrants.
Warrants: as defined in the Recitals to this Agreement.
12. Miscellaneous.
12.1. Rule 144. etc. If the Company shall have filed a registration statement pursuant to the requirements of
Section 12 of the Exchange Act or a registration statement pursuant to the requirements of the Securities Act
relating to any class of securities, the Company will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and will
take such further action as any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (A) Rule 144 under the Securities Act, as
such rule may be amended from time to time or (b) any successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
12.2. Successors. Assigns and Transferees. This Agreement shall be binding upon and insure to the benefit of
the parties hereto and their respective predecessors and permitted assigns under this Section 12.2. Provided
that an express assignment shall have been made, a copy of which shall have been delivered to the Company;, the
provisions of this Agreement which are for the benefit of a holder of Registrable Securities or Warrants shall
be for the benefit of and enforceable by any subsequent holder of any Registrable Securities or Warrants
("Permitted Transferees"), subject to the provisions respecting the minimum numbers or percentages of shares of
Registrable Securities required or Warrants in order to be entitled to certain rights, or to take certain
actions, contained herein.
12.3. Amendment and Modification. This Agreement may be amended, modified or supplemented by the Company
with the written consent of CPII, CTW, the MCM Holding Distributees Majority and a majority (by number of
shares) of any other holder of Registrable Securities whose interests would be adversely affected by such
amendment in a manner different from the effect thereof on other Registrable Securities, provided that all
Stockholders shall be notified of such amendment, modification or supplement.
12.4. Governing Law. This Agreement and the rights and obligations of the parties hereunder and the persons
subject hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of
New York, without giving effect to the choice of law principles thereof.
12.5. Invalidity of Provision. The invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other
jurisdiction.
12.6. Notices. All notices, requests, demands, letters, waivers and other communications required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been duty given if
(a) delivered personally, (b) mailed, certified or registered mail with postage prepaid, (c) sent by next-day or
overnight mail or delivery or (d) sent by fax, as follows:
(i) If to the Company, to it at:
MCM Capital Group, Inc.
5775 Roscoe Court
San Diego, California92123
Attention: Chief Executive Officer
Telecopier No.: (858)309-6977
with a copy to:
MCM Capital Group, Inc.
5775 Roscoe Court
San Diego, California92123
Attention: General Counsel
Telecopier No.: (858)309-6977
and a copy to:
Squire, Sanders & Dempsey L.L.P.
40 North Central Avenue, Suite 2700
Phoenix, Arizona85004
Attention: Timothy W. Moser
Telecopier No.: (602) 253-8129
(ii) If to CPH, to it at:
C.P. International Investments Limited
2nd Floor, Block A, Russell Court
St. Stephen's Green
Dublin 2, Ireland
Attention: Managing Director
Telecopier No.: (011) (353) 475-6605
with a copy to:
Consolidated Press Holdings Limited
54-58 Park
Sydney, NSW 2000 Australia
Attention: Corporate Secretary
Telecopier No.: (011) (61) (2) 9267-2150
and a copy to
Debevoise & Plimpton
875 Third Avenue
New York, NY10022
Attention: John M. Allen, Jr.
Telecopier No.: (212) 909-6836
(iii) If to any MCM Holding Distributee, to it at:
c/o Triarc Companies, Inc.
280 Park Avenue
New York, NY10017
Attention: General Counsel
Telecopier No.: (212) 451 -3216
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY10019
Attention: Neale Albert, Esq. and Paul Ginsberg, Esq.
Telecopier No.: (212) 757-3990
(iv) If to CTW, to it at:
CTW Funding LLC
c/o Triarc Companies, Inc.
280 Park Avenue
New York, NY10017
Attention: Brian Schorr
Telecopier No.: (212) 451 -3216
with a copy to:
Triarc Companies, Inc.
280 Park Avenue
New York, NY10017
Attention: General Counsel
Telecopier No.: (212) 451-3216
and a copy to:
Debevoise & Plimpton
875 Third Avenue New York, NY10022
Attention: John M. Allen, Jr.
Telecopier No.: (212) 909-6836
or to such other person or address as any party shall specify by notice in writing to the Company. All such
notices, requests, demands, letters, waivers and other communications shall be deemed to have been received (w)
if by personal delivery on the day after such delivery, (x) if by certified or registered mail, on the eighth
business day after the mailing thereof, (y) if by next-day or overnight mail or delivery, on the day delivered
or (z) if by fax, on the next day following the day on which such fax was sent, provided that a copy is also
sent by certified or registered mail.
12.7. Headings; Execution in Counterparts. The headings and captions contained herein are for convenience
and shall not control or affect the meaning or construction of any provision hereof. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an original and which together shall
constitute one and the same instrument.
12.8. Injunctive Relief. Each of the parties recognizes and agrees that money damages may be insufficient and,
therefore, in the event of a breach of any provision of this Agreement the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance or to
enjoin the continuing breach of this Agreement. Such remedies shall, however, be cumulative and not exclusive,
and shall be in addition to any other remedy which such party may have.
12.9. Term. This Agreement shall be effective as of the date hereof and shall continue in effect thereafter
until the earlier of (a) its termination by the consent of the parties hereto or their respective successors in
interest, (b) the date on which no Registrable Securities remain outstanding, and (c) the date on which the
Requesting Parties have collectively exhausted their respective rights to request registrations under Section
1.1 and all remaining Registrable Securities are subject to immediate resale by the holder thereof without
regard to volume limitation pursuant to paragraph (k) of Rule 144 under the Securities Act; provided, that after
the date on which the Requesting Parties have collectively exhausted their respective rights to request
registrations under Section 1.1, the rights and obligations under this Agreement of any individual holder of
Registrable Securities shall terminate if and when all of such holder's Registrable Securities are subject to
immediate resale without regard to volume limitation pursuant to paragraph (k) of Rule 144 under the Securities
Act.
12.10. Further Assurances. Subject to the specific terms of this Agreement, each of the Company and the
Stockholders shall make, execute, acknowledge and deliver such other instruments and documents, and take all
such other actions, as may be reasonably required in order to effectuate .the purposes of this Agreement and to
consummate the transactions contemplated hereby.
12.11. Restatement of First Registration Rights Agreement: Entire Agreement. This Agreement amends and
restates in its entirety the First Registration Rights Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement and intended to be a complete and exclusive statement of their
agreement and understanding in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such subject matter.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF this Agreement has been signed by each of the parties hereto, and shall be
effective as of the date first above written.
MCM CAPITAL GROUP, INC.
By: /s/ Carl C. Gregory, III
Name: Carl C. Gregory III
Title: President
MCM HOLDING DISTRIBUTEES MAJORITY Triarc Companies, Inc.
By: /s/ John L. Barnes, Jr
Name: John L. Barnes, Jr.
Its: EVP and CFO
By: /s/ Nelson Peltz
Name: Nelson Peltz
By: /s/ Peter W. May
Name: Peter W. May
C.P. INTERNATIONAL INVESTMENTS LIMITED
By: /s/David John Barnett
Name: David John Barnett
Title: Director
CTW FUNDING, LLC
By: /s/ Brian L.Schorr
Name: Brian L.Schorr Title: Manager
SCHEDULE A
MCM HOLDING DISTRIBUTEES
Madison West Associates Corp. Nelson Peltz Children's Trust Jonathan P.
May 1998 Trust Leslie A. May 1998 Trust
Eric D. Kogan
Edward Garden
John L. Barnes, Jr.
JPAH Holdings, LLC
Brian L. Schorr
Stuart 1. Rosen
James A. Knight
Alex Lemond
Dates Referenced Herein and Documents Incorporated by Reference
