FORM OF] REGISTRATION RIGHTS AGREEMENT
Exhibit
10.3
[FORM
OF]
This
Registration Rights Agreement (this "Agreement") is made and entered into
as of the ____ day of November, 2007, by and among Rick’s Cabaret International,
Inc., a Texas corporation (the "Company"), and the purchasers listed on
Schedule I hereto (each a "Purchaser" and collectively the
“Purchasers”).
This
Agreement is being entered into pursuant to the Common Stock Purchase Agreement
dated as of the date hereof among the Company and the Purchasers (the
"Purchase Agreement").
The
Company and the Purchaser hereby agree as follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
"Affiliate"
means, with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such
Person. For the purposes of this definition, "control," when
used with respect to any Person, means the possession, direct or indirect,
of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract
or
otherwise; and the terms of "affiliated," "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business
Day" means any day except Saturday, Sunday and any day which shall be a
legal holiday or a day on which banking institutions in the state of Texas
generally are authorized or required by law or other government actions to
close.
"Closing
Date" means the date of the closing of the final purchase and sale of the
Common Stock pursuant to the Purchase Agreement.
"Commission"
means the Securities and Exchange Commission.
"Common
Stock" means the Company's Common Stock, par value $0.01 per
share.
"Effectiveness
Date" means with respect to the Registration Statement the earlier
of the one hundred and fiftieth day (150th) day following
the
Closing Date (or in the event the Registration Statement receives a “full
review” by the Commission, the one hundred eightieth (180th) day following
the
Closing Date); provided that, if the Effectiveness Date falls on a
Saturday, Sunday or any other day which shall be a legal holiday or a day on
which the Commission is authorized or required by law or other government
actions to close, the Effectiveness Date shall be the following Business
Day.
"Effectiveness
Period" shall have the meaning set forth in Section 2.
"Event"
shall have the meaning set forth in Section 7(e).
"Event
Date" shall have the meaning set forth in Section 7(e).
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Filing
Date" means January 15, 2008; provided that, if the Company is unable to
file the Registration Statement at that time due to any rule or regulation
of
the Commission, then the Filing Date shall be February 15, 2008.
"Holder"
or "Holders" means the holder or holders, as the case may be, from time
to time of Registrable Securities.
"Losses"
shall have the meaning set forth in
Section 6(a).
"Person"
means an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or political subdivision thereof) or
other entity of any kind.
"Proceeding"
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
"Prospectus"
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
"Registrable
Securities” means the shares of Common Stock issued or issuable pursuant to
the Purchase Agreement.
"Registration
Statement" means the registration statements and any additional registration
statements contemplated by Section 2, including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference in such registration
statement.
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"Rule
144" means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
"Rule
158" means Rule 158 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
"Rule
415" means Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
"Rule
424" means Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
"Securities
Act" means the Securities Act of 1933, as amended.
2. Resale
Registration.
On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a "resale" Registration Statement providing for the resale of all Registrable
Securities for an offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form S-3, in which case such registration shall be on another appropriate
form in accordance herewith and the Securities Act and the rules promulgated
thereunder). Such Registration Statement shall cover to the extent
allowable under the Securities Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions
with
respect to the Registrable Securities. The Company shall use its best
efforts to cause the Registration Statement to be declared effective under
the
Securities Act as promptly as possible after the filing thereof and to keep
such
Registration Statement continuously effective under the Securities Act until
such date as is the earlier of (x) the date when all Registrable Securities
covered by such Registration Statement have been sold or (y) the date on which
the Registrable Securities may be sold without any restriction pursuant to
Rule
144(k) as determined by the counsel to the Company (the "Effectiveness
Period").
3. Registration
Procedures.
In
connection with its obligations hereunder, the Company shall:
(a) prepare
and file with the Commission, on or prior to the Filing Date, a Registration
Statement on Form S-3 (of if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3 such registration shall be on
another appropriate form in accordance herewith and the Securities Act and
the
rules promulgated thereunder) in accordance with the plan of distribution as
set
forth on Exhibit A hereto and in accordance with applicable law, and
cause the Registration Statement to become effective and remain effective as
provided herein;
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(b) prepare
and file with the Commission such amendments and supplements to a Registration
Statement and the Prospectus used in connection therewith as may be necessary
to
keep the Registration Statement effective for the Effectiveness Period and
as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Registration
Statement;
(c) if
a Prospectus supplement will be used in connection with the marketing of an
underwritten offering and the managing underwriter at any time shall notify
the
Company in writing that, in the sole judgment of such managing underwriter,
inclusion of detailed information to be used in such Prospectus supplement
is of
material importance to the success of the underwritten offering of such
Registrable Securities, the Company shall use its commercially reasonable
efforts to include such information in such Prospectus supplement;
(d) furnish
to each Holder (i) as far in advance as reasonably practicable before filing
a
Registration Statement or any other registration statement contemplated by
this
Agreement or any supplement or amendment thereto, upon request, copies of
reasonably complete drafts of all such documents proposed to be filed (including
exhibits to the extent then required by the rules and regulations of the
Commission), and provide each such Holder the opportunity to object to any
information pertaining to such Holder and its plan of distribution that is
contained therein and make the corrections reasonably requested by such Holder
with respect to such information prior to filing a Registration Statement or
such other registration statement or supplement or amendment thereto, and (ii)
such number of copies of the Registration Statement or such other registration
statement and the Prospectus included therein and any supplements and amendments
thereto as such Holder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities covered by such
Registration Statement or other registration statement;
(e) if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Registration Statement or any other
registration statement contemplated by this Agreement under the securities
or
blue sky laws of such jurisdictions as the Holder shall reasonably request;
provided, however, that the Company will not be required to qualify
generally to transact business in any jurisdiction where it is not then required
to so qualify or to take any action which would subject it to general service
of
process in any such jurisdiction where it is not then so subject;
(f) promptly
notify each Holder at any time when a Prospectus relating thereto is required
to
be delivered under the Securities Act, of the filing of a Registration Statement
or any other registration statement contemplated by this Agreement or any
Prospectus or Prospectus supplement to be used in connection therewith, or
any
amendment or supplement thereto, and, with respect to such Registration
Statement or any other registration statement or any post-effective amendment
thereto, when the same has become effective;
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(g) immediately
notify each Holder at any time when a Prospectus relating thereto is required
to
be delivered under the Securities Act, of (i) the happening of any event as
a
result of which the Prospectus or Prospectus supplement contained in the
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 the light of
the
circumstances then existing; (ii) the issuance or threat of issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (iii) any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to the Registration Statement or Prospectus or
for
additional information; or (iv) the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws of any
jurisdiction. Following the provision of such notice, the Company
agrees to as promptly as practicable amend or supplement the Prospectus or
Prospectus supplement or take other appropriate action so that the Prospectus
or
Prospectus supplement does 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 the light of the circumstances then
existing and to take such other action as is necessary to remove a stop order,
suspension, threat thereof or proceedings related thereto;
(h) otherwise
use its commercially reasonable efforts to 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, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158
promulgated thereunder;
(i) cause
all such Registrable Securities registered pursuant to this Agreement to be
listed on each securities exchange or nationally recognized quotation system
on
which similar securities issued by the Company are then listed;
(j) provide
a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(k) enter
into customary agreements and take such other actions as are reasonably
requested by the Holder, if any, in order to expedite or facilitate the
disposition of such Registrable Securities; and
(l) Notwithstanding
anything to the contrary contained herein, the Company may, upon written notice
to any Holder whose Registrable Securities are included in a Registration
Statement, suspend such Holder’s use of any Prospectus which is a part of the
Registration Statement (in which event the Holder shall discontinue sales of
the
Registrable Securities pursuant to the Registration Statement), for a period
not
to exceed an aggregate of 90 days in any 365-day period, if (i) the Company
is
pursuing a material acquisition, merger, reorganization, disposition or other
similar transaction and the Company determines in good faith that its ability
to
pursue or consummate such a transaction would be materially adversely affected
by any required disclosure of such transaction in such Registration Statement;
(ii) the Company has experienced some other material non-public event, the
disclosure of which at such time, in the good faith judgment of the Company,
would materially adversely affect the Company; or (iii) the Company is required
to file a post-effective amendment to the Registration Statement to incorporate
the Company’s quarterly and annual reports and audited financial statements on
Forms 10-QSB and 10-KSB. Upon disclosure of such information or the termination
of the condition described above, the Company shall provide prompt written
notice to the Holders whose Registrable Securities are included in the
Registration Statement, and shall promptly terminate any suspension of sales
it
has put into effect and shall take such other actions to permit registered
sales
of Registrable Securities as contemplated in this Agreement.
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Each
Holder, upon receipt of notice from the Company of the happening of any event
of
the kind described in subsection (g) of this Section 3, shall forthwith
discontinue disposition of the Registrable Securities until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated
by
subsection (g) of this Section 3 or until it is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings incorporated by reference
in
the Prospectus, and, if so directed by the Company, such Holder will deliver
to
the Company (at the Company’s expense) all copies in their possession or
control, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
Section
4. Cooperation by
Holders. The Company shall have no obligation to include in a
Registration Statement the Registrable Securities of a Holder, who has failed
to
timely furnish such information that, in the opinion of counsel to the Company,
is reasonably required in order for the registration statement or Prospectus
supplement, as applicable, to comply with the Securities Act.
If
the
Registration Statement refers to any Holder by name or otherwise as the holder
of any securities of the Company, then such Holder shall have the right to
require (if such reference to such Holder by name or otherwise is not required
by the Securities Act or any similar federal statute then in force) the deletion
of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each
Holder covenants and agrees that
it will not sell any Registrable Securities under the Registration Statement
until the Company has electronically filed the Prospectus as then amended or
supplemented as contemplated in Section 3(b) and notice from the Company that
the Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(b).
Section
5. Registration
Expenses.
(a) Expenses. The
Company will pay all reasonable Registration Expenses as determined in good
faith. Each Holder shall pay all Selling Expenses in connection with
any sale of its Registrable Securities hereunder. In addition, except as
otherwise provided in this Section 6 hereof, the Company shall not be
responsible for legal fees incurred by Holders in connection with the exercise
of such Holders’ rights hereunder.
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(b) Certain
Definitions. “Registration Expenses” means all expenses
incident to the Company’s performance under or compliance with this Agreement to
effect the registration of Registrable Securities on the Registration Statement
pursuant to Section 2 under this Agreement, including, without limitation,
all
registration, filing, securities exchange listing and related fees, all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws, fees of the National Association of Securities
Dealers, Inc., fees of transfer agents and registrars, all word processing,
duplicating and printing expenses and the fees and disbursements of counsel
and
independent public accountants for the Company, including the expenses of any
special audits or “cold comfort” letters required by or incident to such
performance and compliance. “Selling Expenses” means all
underwriting fees, discounts and selling commissions allocable to, and any
transfer taxes associated with, the sale of the Registrable
Securities.
Section
6. Indemnification.
(a) By
the Company. In the event of a registration of any
Registrable Securities under the Securities Act pursuant to this Agreement,
the
Company will indemnify and hold harmless each Holder thereunder, its directors,
officers, employees and agents, and each underwriter, if any, pursuant to the
applicable underwriting agreement with the underwriter, of Registrable
Securities thereunder and each Person, if any, who controls such Holder within
the meaning of the Securities Act and the Exchange Act, and its directors,
officers, employees or agents, against any losses, claims, damages, expenses
or
liabilities (including reasonable attorneys’ fees and expenses) (collectively,
“Losses”), joint or several, to which such Holder or underwriter or
controlling Person may become subject under the Securities Act, the Exchange
Act
or otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Registration Statement or any other registration statement contemplated
by
this Agreement, any preliminary Prospectus, free writing Prospectus or final
Prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a Prospectus, in light of the circumstances under which
they were made) not misleading, and will reimburse each such Holder, its
directors, officers, employee and agents, each such underwriter and each such
controlling Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such Loss or actions or
proceedings; provided, however, that the Company will not be liable in
any such case if and to the extent that any such Loss arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by such Holder, its
directors, officers, employees and agents or any underwriter or such controlling
Person in writing specifically for use in the Registration Statement or such
other registration statement, or Prospectus supplement, as applicable. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Holder or any such directors, officers, employees
agents or any underwriter or controlling Person, and shall survive the transfer
of such securities by such Holder.
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(b) By
Each Holder. Each Holder agrees severally and not jointly to
indemnify and hold harmless the Company, its directors, officers, employees
and
agents and each Person, if any, who controls the Company within the meaning
of
the Securities Act or of the Exchange Act, and its directors, officers,
employees and agents, to the same extent as the foregoing indemnity from the
Company to the Holder, but only with respect to information regarding such
Holder furnished in writing by or on behalf of such Holder expressly for
inclusion in a Registration Statement or Prospectus supplement relating to
the
Registrable Securities, or any amendment or supplement thereto; provided,
however, that the liability of each Holder shall not be greater in amount
than the dollar amount of the proceeds (net of any Selling Expenses) received
by
such Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice. Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to any indemnified party under
this Section 6. In any action brought against any indemnified party,
it shall notify the indemnifying party of the commencement
thereof. The indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
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 and undertake the defense thereof, the indemnifying party shall not
be
liable to such indemnified party under this Section 6 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, however, that, (i) if the indemnifying party has
failed to assume the defense or employ counsel reasonably acceptable to the
indemnified party or (ii) if the defendants in any such action include both
the
indemnified party and the indemnifying party and counsel to the indemnified
party shall have concluded that there may be reasonable defenses available
to
the indemnified party that are different from or additional to those available
to the indemnifying party, or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such separate
counsel and other reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred. Notwithstanding any
other provision of this Agreement, no indemnifying party shall settle any action
brought against an indemnified party with respect to which it is entitled to
indemnification hereunder without the consent of the indemnified party, unless
the settlement thereof imposes no liability or obligation on, and includes
a
complete and unconditional release from all liability of, the indemnified
party.
(d) Contribution. If
the indemnification provided for in this Section 6 is held by a court or
government agency of competent jurisdiction to be unavailable to any indemnified
party or is insufficient to hold them harmless in respect of any Losses, then
each such indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such Loss in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of such indemnified party
on
the other in connection with the statements or omissions which resulted in
such
Losses, as well as any other relevant equitable considerations; provided,
however, that in no event shall such Holder be required to contribute an
aggregate amount in excess of the dollar amount of proceeds (net of Selling
Expenses) received by such Holder from the sale of Registrable Securities giving
rise to such indemnification. The relative fault of the indemnifying
party on the one hand and the indemnified party on the other 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 has been made by, or relates to, information supplied by such
party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph were to be determined by pro rata allocation or
by
any other method of allocation which does not take account of the equitable
considerations referred to herein. The amount paid by an indemnified
party as a result of the Losses referred to in the first sentence of this
paragraph shall be deemed to include any legal and other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any Loss which is the subject of this paragraph. 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 is not guilty of such
fraudulent misrepresentation.
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Section
7. Rule 144
Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of
the
Registrable Securities to the public without registration, the Company agrees
to
use its commercially reasonable efforts to:
(a) Make
and keep public information regarding the Company available, as those terms
are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the date hereof; and
(b) File
with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act at all times from
and after the date hereof.
8.
Miscellaneous.
(a) No
Inconsistent Agreements. Neither the Company nor any of its
subsidiaries has, as of the date hereof entered into and currently in effect,
nor shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Failure
to File Registration Statement and Other Events. The Company and
the Purchasers agree that the Holders will suffer damages if the Registration
Statement is not filed on or prior to the Filing Date and not declared effective
by the Commission on or prior to the Effectiveness Date. The Company
and the Holders further agree that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, if (A) the
Registration Statement is not filed on or prior to the Filing Date, or (B)
the
Registration Statement is not declared effective by the Commission on or prior
to the Effectiveness Date, (any such failure or breach being referred to as
an
"Event," and for purposes of clauses (A) and (B) the date on which such
Event occurs, being referred to as "Event Date"), the Company shall pay
an amount in cash as liquidated damages, and not as a penalty, to each Holder
equal to 0.25% of the amount of the Holder’s investment in the Common Stock of
the Company as set forth in the Purchase Agreement for each thirty (30) day
period for the first sixty (60) days of the period, increasing by an additional
0.25% per thirty (30) day period for each subsequent sixty (60) days, up to
a
maximum of one percent (1%) from the Event Date until the applicable Event
is
cured; provided, however, that in no event shall the amount of
liquidated damages payable at any time and from time to time to any Holder
pursuant to this Section 8(b) exceed an aggregate of ten percent (10%) of the
amount of the Holder’s investment in the Common Stock of the Company as set
forth in the Purchase Agreement. Notwithstanding anything to the
contrary in this Section 8(b), if (a) any of the Events described in clauses
(A)
or (B) shall have occurred, (b) on or prior to the applicable Event Date, the
Company shall have exercised its rights under Section 3(l) hereof and (c) the
postponement or suspension permitted pursuant to such Section 3(l) shall remain
effective as of such applicable Event Date, then the applicable Event Date
shall
be deemed instead to occur on the second Business Day following the termination
of such postponement or suspension. The Company shall not be
responsible for any liquidated damages provided that the Registrable Securities
are eligible for resale pursuant to Rule 144 of the Securities
Act. Further, the liquidated damages shall be automatically
eliminated without any action by the parties to the extent the Commission or
the
then published statements of the Fair Accounting Standards Board provides that
(A) any portion of the liquidated damages shall be accounted for as a derivative
instrument rather than a contingent payment obligation under generally accepted
accounting principles and the rules and regulations of the Commission or (B)
any
of the Registrable Securities (whether or not deemed to include the liquidated
damages payment obligation) must be accounted for as interests other than equity
interests under generally accepted accounting principles and the rules and
regulations of the Commission.
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(c) Amendments
and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and the Holders
of
a majority of the Registrable Securities outstanding.
(d) Notices. Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery, telecopy or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice
is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
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If
to the Company:
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Rick’s
Cabaret International, Inc.
00000
Xxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxxx, President
Tel.
No.: 000 000 0000
Fax
No.: 000 000 0000
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with
copies (which shall not constitute notice) to:
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Xxxxxxx,
Xxxxx & Xxxxxxxxx
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx X. Xxxxxxx
Tel.
No.: 000 000 0000
Fax
No.: 000 000 0000
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If
to any Purchaser:
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At
the address of such Purchaser set forth on Schedule I to this
Agreement.
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Any
party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
(e) Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and permitted assigns and shall
inure to the benefit of each Holder and its successors and
assigns. The Company may not assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of each
Holder. Each Purchaser may assign its rights hereunder in the manner
and to the Persons as permitted under the Purchase Agreement.
(f) Assignment
of Registration Rights. The rights of each Holder hereunder,
including the right to have the Company register for resale Registrable
Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder of all or a
portion of the Registrable Securities to any person if:
(i) the Holder agrees in writing with the transferee or assignee to assign
such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a)
the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned,
(iii) following such transfer or assignment the further disposition of such
securities by the transferee or assignees is restricted under the Securities
Act
and applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this Section, the
transferee or assignee agrees in writing with the Company to be bound by all
of
the provisions of this Agreement, and (v) such transfer shall have been made
in
accordance with the applicable requirements of the Purchase
Agreement. The rights to assignment shall apply to the Holders (and
to subsequent) successors and assigns.
(g) Counterparts. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing
(or
on whose behalf such signature is executed) with the same force and effect
as if
such facsimile or “.pdf” signature page were an original
thereof.
-11-
(h) Governing
Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas, without
giving effect to any of the conflicts of law principles which would result
in
the application of the substantive law of another jurisdiction. This
Agreement shall not be interpreted or construed with any presumption against
the
party causing this Agreement to be drafted. The Company and the
Holders agree that venue for any dispute arising under this Agreement will
lie
exclusively in the state or federal courts located in Xxxxxx County, Texas,
and
the parties irrevocably waive any right to raise forum non conveniens
or any other argument that Texas is not the proper venue. The Company
and the Holders irrevocably consent to personal jurisdiction in the state and
federal courts of the state of Texas. The Company and the Holders
consent to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to
it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing in this
Section 8(j) shall affect or limit any right to serve process in any other
manner permitted by law. The Company and the Holders hereby agree
that the prevailing party in any suit, action or proceeding arising out of
or
relating to this Agreement or the Purchase Agreement, shall be entitled to
reimbursement for reasonable legal fees from the non-prevailing
party.
(i) Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(j) Severability.
If any term, provision, covenant or restriction of this Agreement is held to
be
invalid, illegal, void or unenforceable in any respect, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ
an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(l) Shares
Held by the Company and its Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its Affiliates (other
than any Holder or transferees or successors or assigns thereof if such Holder
is deemed to be an Affiliate solely by reason of its holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
[remainder
of page intentionally left blank]
-12-
IN
WITNESS WHEREOF, the parties hereto
have caused this Registration Rights Agreement to be duly executed by their
respective authorized persons as of the date first indicated above.
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RICK’S
CABARET INTERNATIONAL, INC.
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By:
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Name:
Xxxx Xxxxxx
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Title: President
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PURCHASER:
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By:
|
||
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Name:
|
||
|
Title:
|
||
|
PURCHASER:
|
||
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By:
|
||
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Name:
|
||
|
Title:
|
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PURCHASER:
|
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By:
|
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|
Name:
|
||
|
Title:
|
||
-13-
