THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into as of January 12,
1996, by and among La Salsa Holding Co., a Delaware corporation (the "Company"),
and the persons and entities listed on Schedule 1 hereto (the "Investors") for
the purpose of (i) amending and restating the rights related to registration
pursuant to the Securities Act of 1933 (the "Act" ) for the shares of capital
stock of the Company purchased by the Investors pursuant to the Original
Agreements, the Series B Stock Purchase Agreement, the Series C Stock Purchase
Agreement and the Original Series D Stock Purchase Agreement (as defined below)
and (ii) to establish such similar registration rights for the shares of Series
D Convertible Preferred Stock purchased pursuant to a Series D Convertible
Preferred Stock and Warrant Purchase Agreement (the "New Agreement"), by and
between the Company and Casual Dining Ventures, Inc. ("CDV"), to be executed
concurrently herewith and shares of Series D Convertible Preferred Stock
issuable upon exercise of a warrant purchased by CDV pursuant to the New
Agreement (the "CDV Warrant").
WHEREAS, in connection with the transactions contemplated
under that certain Asset and Stock Purchase and Reorganization Agreement, dated
as of February 19, 1992 (the "Asset Purchase Agreement"), the Company, Sienna
Limited Partnership I, a California limited partnership ("Sienna"), InterWest
Partners IV, a California limited partnership ("InterWest"), Howdy S. Kabrins
("Kabrins"), La Salsa, Inc., a California corporation ("La Salsa"), and Sienna
Holdings, Inc., a California corporation, as Nominee ("Nominee"), entered into
that certain Series A Preferred and Common Stock Purchase Agreement, dated as of
March 4, 1992 (the "First Agreement"), under which the parties were granted
certain registration rights related to the capital stock acquired pursuant to
the Asset Purchase Agreement and the First Agreement;
WHEREAS, Xxxxxxx X. Xxxxxx ("Xxxxxx") entered into a Series A
Preferred and Common Stock Purchase Agreement, dated as of August 26, 1992 by
and among Xxxxxx, the Company, Sienna and InterWest (the "Xxxxxx Agreement")
which granted Xxxxxx certain registration rights related to the capital stock he
acquired under the Xxxxxx Agreement, and such shares were subsequently
transferred to Howdy S. Kabrins;
WHEREAS, Xxxxxxx X. Xxxxx ("Xxxxx," and collectively with
Kabrins, La Salsa, Nominee, Sienna, InterWest and Xxxxxx, the "Original
Investors") entered into a Series A Preferred and Common Stock Purchase
Agreement, dated as of August 26, 1992 by and among Xxxxx, the Company, Sienna
and InterWest (the "Xxxxx Agreement") which granted Xxxxx certain registration
rights related to the capital stock he acquired under the Xxxxx Agreement;
WHEREAS, Sienna and InterWest purchased additional shares of
the Company's capital stock pursuant to a Series A Preferred and Common Stock
Purchase Agreement, dated as of October 6, 1992 by and among the Company, Sienna
and InterWest (the "Second Agreement," and collectively with the First
Agreement, Xxxxxx Agreement and Xxxxx Agreement, the "Original Agreements")
which granted registration rights for the shares purchased thereunder identical
to the rights granted in the First Agreement;
WHEREAS, on May 11, 1993, the Company filed an amendment to
its certificate of incorporation which reclassified the capital stock purchased
pursuant to the Original Agreements into Series A Convertible Preferred Stock
(collectively with the Series B Convertible Preferred Stock, Series C
Convertible Preferred Stock and Series D Convertible Preferred Stock, the
"Convertible Preferred Stock");
WHEREAS, the Company, Xxxxxxxx X. Xxxxxxx ("Xxxxxxx"), Crown
Associates III, L.P., a Delaware limited partnership ("C.A. III"), Crown-Xxxxx
Associates, L.P., a Delaware limited partnership ("Crown-Xxxxx"), U.S. Trust
Company of New York as Trustee for the Crown Trust ("Crown Trust, " and
collectively with C.A. III and Crown- Xxxxx, "Crown"), Bankers Trust Company, as
Master Trustee for Xxxxxx Aircraft Retirement Plans ("Xxxxxx"), InterWest,
Noro-Xxxxxxx Partners II, L.P., a Georgia limited partnership ("Noro-Xxxxxxx"),
Xxxxxxx Salsa, L.P., a Delaware limited partnership ("Xxxxxxx"), and Sienna
(collectively, the "Series B Investors") entered into that certain Series B
Convertible Preferred Stock Purchase Agreement dated as of May 12, 1993 (the
"Series B Stock Purchase Agreement"), and in connection therewith entered into a
Registration Rights Agreement dated as of May 12, 1993, (the "Registration
Rights Agreement"), by and among the Company, the Original Investors, and the
Series B Investors, which superseded the registration rights granted in the
Original Agreements and granted certain registration rights for the shares
purchased under the Series B Stock Purchase Agreement and the Original
Agreements;
WHEREAS, the Company, Ashford, C.A. III, Noro-Xxxxxxx,
Seidler, Hughes, Sienna, Nominee and InterWest (collectively, the "Series C
Investors") entered into that certain Series C Convertible Preferred Stock
Purchase Agreement dated as of April 1, 1994 (the "Series C Stock Purchase
Agreement"), and in connection therewith entered into an Amended and Restated
Registration Rights Agreement dated as of April 1, 1994 (the "Amended
Registration Rights Agreement"), by and among the Company, the Original
Investors, the Series B Investors and the Series C Investors, which superseded
the registration rights granted in the Registration Rights Agreement and granted
certain registration rights for the shares purchased under the Original
Agreements, the Series B Stock Purchase Agreement and the Series C Stock
Purchase Agreement;
WHEREAS, the Company, FMA High Yield Income L.P., WSIS
Flexible Income Partners L.P., WSIS High Income L.P., Sienna Limited Partnership
II, InterWest, Xxxxxx, Noro-Xxxxxxx and Xxxxxxx (collectively, the "Original
Series D Investors") entered into that certain Series D Convertible Preferred
Stock Purchase Agreement dated as of March 3, 1995 and March 8, 1995 (the
"Original Series D Stock Purchase Agreement"), and in connection therewith
entered into a Second Amended and Restated Registration Rights Agreement dated
as of March 3, 1995 (the "Second Amended and Restated Registration Rights
Agreement"), by and among the Company, the Original Investors, the Series B
Investors, the Series C Investors and the Original Series D Investors, which
superseded the registration rights granted in the Second Amended and Restated
Registration Rights Agreement and granted certain registration rights for the
shares purchased under the Original Agreements, the Series B Stock Purchase
Agreement, the Series C Stock Purchase Agreement and the Original Series D Stock
Purchase Agreement;
WHEREAS, the second Amended and Restated Registration Rights
Agreement may be amended and restated with the written consent of each of (i)
the Company, (ii) the holders of a majority of the Registrable Securities (as
such term is defined in such agreement) and (iii) the holders of greater than
sixty-six and two thirds percent (66-2/3%) of the outstanding shares of Series D
Convertible Preferred Stock and Series D Notes;
WHEREAS, the Company, the holders of a majority of the
Registrable Securities and the holders of greater than sixty-six and two-thirds
percent (66-2/3%) of the outstanding shares of Series D Convertible Preferred
Stock and Series D Notes; and
WHEREAS, the parties hereto desire to amend and restate the
Second Amended and Restated Registration Rights Agreement in connection with the
sale of additional shares of Series D Convertible Preferred Stock financing of
the Company to CDV by executing this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
promises set forth herein, the parties hereto agree as follows:
1. Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means (1) any Common
Stock of the Company issued or issuable upon the conversion of the Company's
Convertible Preferred Stock, or in the case of the Series D Convertible
Preferred Stock, upon the conversion of the convertible senior subordinated
notes issuable in redemption of such Series D Convertible Preferred Stock (the
"Series D Notes"), issued pursuant to, or issued in exchange for the securities
issued pursuant to, the Asset Purchase Agreement, the Original Agreements, the
Series B Stock Purchase Agreement, the Series C Stock Purchase Agreement, the
Original Series D Stock Purchase Agreement, the New Agreement, the Foothill
Warrant or the CDV Warrant, (2) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the securities set forth in (1) above
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which his rights under this Agreement are not assigned.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 8 hereof.
(d) The term "Foothill Warrant" means the warrant dated
February 20, 1993, issued to Foothill Capital Corporation, initially to purchase
100,000 shares of Common Stock.
2. Request for Registration.
(a) If the Company shall receive at any time after the date
hereof a written request from the Holders of a majority of the Registrable
Securities that the Company file a registration statement under the Act, then
the Company shall, within ten (10) days of receipt thereof, give written notice
in accordance with Section 14(d) of such request to all Holders and shall,
subject to the limitations of subsection 2(b), effect as soon as practicable,
and in any event shall use its best efforts to effect within sixty (60) days of
the receipt of such request (or ninety (90) days in the case of an initial
public offering), the registration under the Act of all Registrable Securities
that such Holders initiating the registration request hereunder ("Initiating
Holders") and any other Holders request to be registered within twenty (20) days
of the mailing of such notice by the Company.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2, and the Company shall include such information in the written
notice referred to in subsection 2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders; provided, however, that if the Company has not selected an
underwriter reasonably acceptable to the Initiating Holders within twenty (20)
days after the Company's receipt of the request for registration from the
Initiating Holders, then the Initiating Holders may select an underwriter
reasonably acceptable to the Company in connection with such registration. In
such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to effect more than three registrations, filings and qualifications
pursuant to Section 2.
(d) CDV shall forfeit one of the demand registrations granted
to CDV under Section 3 below for each registration effected under this Section 2
in which shares of Registrable Securities held by CDV are included.
3. CDV Request for Registration.
(a) If the Company shall receive at any time after three (3)
months after the effective date of the first registration statement for a public
offering of securities of the Company (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a transaction under Rule
145 of the Act) a written request from CDV that the Company file a registration
statement under the Act, then the Company shall, subject to the limitations of
subsection 3(b), effect as soon as practicable, and in any event shall use its
best efforts to effect within sixty (60) days of the receipt of such request,
the registration under the Act of all Registrable Securities that CDV requests
hereunder.
(b) If CDV intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise the
Company as a part of its request made pursuant to this Section 3. The
underwriter will be selected by the Company and shall be reasonably acceptable
to CDV; provided, however, that if the Company has not selected an underwriter
reasonably acceptable to CDV within twenty (20) days after the Company's receipt
of the request for registration from CDV, then CDV may select an underwriter
reasonably acceptable to the Company in connection with such registration. In
such event, the right of CDV to include its Registrable Securities in such
registration shall be conditioned upon CDV's participation in such underwriting
and the inclusion of CDV's Registrable Securities in the underwriting to the
extent provided herein. CDV shall (together with the Company as provided in
subsection 5(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 3, if the underwriter advises CDV in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the number of shares of Registrable Securities that may be
included by CDV in the underwriting shall be reduced accordingly; provided,
however, that if the number of shares of Registrable Securities that may be
included in the underwriting is less than fifty percent (50%) of the number of
shares of Registrable Securities requested to be registered by CDV, such
registration shall not be treated as effected for purposes of Section 3(c)
below.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to effect more than three registrations, filings and qualifications
pursuant to Section 3.
4. Company Registration.
(a) If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a compensatory Company stock plan, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable Blue Sky or other state securities
laws). Upon the written request of each Holder given within twenty (20) days
after mailing of such notice by the Company in accordance with Section 14(d),
the Company shall, subject to the provisions of subsection 4(b), cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 4 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration.
(b) In connection with any offering involving an underwriting
of shares of the Company's capital stock, the Company shall not be required
under Section 4(a) to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine, in their sole discretion, will not jeopardize the
success of the offering by the Company. If: (a) the total amount of securities,
including Registrable Securities, requested by Holders to be included in such
offering exceeds (b) the amount of securities to be sold other than by the
Company that the underwriters determine in their sole discretion is compatible
with the success of the offering, then the Company shall be required to include
in the offering only that number of such securities, including Registrable
Securities, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling Holders according to the total amount of
securities entitled to be included therein owned by each selling stockholder or
in such other proportions as shall mutually be agreed to by all such selling
stockholders).
5. Obligations of the Company. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
(c) furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them;
(d) use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
(e) in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering, provided each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(f) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event 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 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
(g) use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Agreement, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Agreement, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities,
and (ii) a letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
6. Holders to Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any selling Holder that
such Holder shall furnish to the Company such information regarding such Holder,
the Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
such Holder's Registrable Securities.
7. Expenses of Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Sections 2, 3 and 4,
including without limitation all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders (which counsel shall be reasonably satisfactory to all selling
Holders) shall be borne by the Company.
8. Indemnification. In the event any Registrable Securities
are included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder,
any underwriter (as defined in the Act) for such Holder and each person, if any,
who controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934 Act
or any state securities law. The Company will pay to each such Holder,
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 8(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld) unless such settlement includes an unconditional
term thereof whereby the claimant or plaintiff gives to the Company a release
from all liability with respect to such claim or action, nor shall the Company
be liable to any particular Holder, underwriter or controlling person in any
such case for any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by any such Holder, underwriter or controlling
person.
(b) Each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration. Each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 8(b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, (which consent shall
not be unreasonably withheld) unless such settlement includes an unconditional
term thereof whereby the claimant or plaintiff gives to the Holder a release
from all liability with respect to such claim or action; provided further, that
in no event shall any indemnity under this subsection 8(b) exceed the gross
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 8, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if, and only if, prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 8, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 8.
(d) The obligations of the Company and Holders under this
Section 8 shall survive the completion of any offering of Registrable Securities
in a registration statement under this Agreement and otherwise.
9. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities; provided the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned, and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
10. Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of at least a majority of the outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would grant to such holder or
prospective holder registration rights.
11. "Market Stand-Off" Agreement. Each Investor hereby agrees
that, during the period of duration specified by the Company and an underwriter
of Common Stock or other securities of the Company, following the effective date
of a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company or such nderwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except Common Stock included in such
registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements; and
(c) such period shall not exceed one hundred eighty (180) days
after the effective date of such registration statement.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
12. Amendment of Registration Rights. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of (i) the Company and
(ii) the holders of a majority of the Registrable Securities. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities and the Company.
13. Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Agreement after ten (10)
years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with an
underwritten public offering of the Common Stock of the Company with aggregate
proceeds to the Company in excess of $10,000,000.
14. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California (without regard to the
application of choice of law rules), except with respect to matters of law
concerning the internal corporate affairs of any corporate entity which is a
party hereto, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
(b) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(d) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties. A copy of any notices sent to the Company
shall be sent to: Sienna Holdings, Xxx Xxxxxx, Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000-0000, Attn: Xx. Xxxxxx X. Xxxxx; InterWest Partners,
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000, Attn: Xx.
Xxxxxxx X. Xxxxxx; Xxxxxxx, Xxxxxxx & Xxxxxxxx, Two Embarcadero Place, 0000 Xxxx
Xxxx, Xxxx Xxxx, XX 00000, Attn: Xxxx X. Xxxxxxx, Esq. A copy of any notice sent
to Noro- Xxxxxxx shall be sent to: Xxxxx, Day, Xxxxxx & Xxxxx, 3500 One
Peachtree Center, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, Attn: Xxxx
X. Xxxxx, Esq. All notices and communications shall be deemed to have been
received: (i) in the case of personal delivery, on the date of such delivery;
(ii) in the case of telex or facsimile transmission, on the date on which the
sender receives confirmation by telex or facsimile transmission that such notice
was received by the addressee, provided that a copy of such transmission is
additionally sent by mail as set forth in (iv) below; (iii) in the case of
overnight air courier, on the second business day following the day sent, with
receipt confirmed by the courier; and (iv) in the case of mailing by first class
certified or registered mail, postage prepaid, return receipt requested, on the
fifth business day following such mailing.
(e) Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
(f) Final Terms. This Agreement is the full and complete
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements, negotiations and understandings, written or
oral, including without limitation, the Original Agreements, the Registration
Rights Agreement and the Amended Registration Rights Agreement, and the Original
Agreements, the Registration Rights Agreement, the Amended Registration Rights
Agreement and the Second Amended and Restated Registration Rights Agreement are
hereby terminated and shall be of no further force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
LA SALSA HOLDING CO.,
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
Address: 00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
INTERWEST PARTNERS IV,
a California Limited Partnership
By: INTERWEST MANAGEMENT PARTNERS IV,
L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx,
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
HOWDY S. KABRINS
/s/ Howdy S. Kabrins
--------------------
Address: 0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
LA SALSA, INC.,
a California corporation
By: /s/ Howdy S. Kabrins
------------------------------
Howdy S. Kabrins,
President
Address: 0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
CROWN ASSOCIATES III, L.P.,
a Delaware Limited Partnership
By: /s/ Xxxxxxxx X. XxXxxxxx
----------------------------------
Xxxxxxxx X. XxXxxxxx
General Partner
Crown Partners III, L.P.
Address: 00 Xxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
CROWN-XXXXX ASSOCIATES, L.P.,
a Delaware Limited Partnership
By: /s/ Xxxxxxxx X. XxXxxxxx
----------------------------------
Xxxxxxxx X. XxXxxxxx
General Partner
Crown-Xxxxx Partners, L.P.
Address: 00 Xxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
NUEBERGER & XXXXXX AS TRUSTEE FOR THE CROWN TRUST
By: /s/
---------------
Name: (illegible)
Title:
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXX X. XXXXXXX
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Address: Building B-107 Greenville Center
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
NORO-XXXXXXX PARTNERS II, L.P.
a Georgia Limited Partnership
By: Xxxxxxx and Company II,
its General Partner
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
Address: 0 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
XXXXXXX SALSA, L.P.,
a Delaware Limited Partnership
By: THE XXXXXXX COMPANY, its General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
President
Address: 000 X. Xxxxxxxx Xx., Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
BANKERS TRUST COMPANY AS MASTER
TRUSTEE FOR XXXXXX AIRCRAFT RETIREMENT
PLANS
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Attorney-in-Fact
Address: 00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
SIENNA LIMITED PARTNERSHIP I
a California Limited Partnership
By: SIENNA ASSOCIATES, its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx,
Chairman of the General Partner
Address: One Market
Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SIENNA HOLDINGS, INC.
a California corporation, as Nominee
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx,
Chairman
Address: One Market
Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SIENNA LIMITED PARTNERSHIP II
a California Limited Partnership
By: SIENNA ASSOCIATES, its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx,
Chairman of the General Partner
Address: One Market
Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
FMA HIGH YIELD INCOME L.P.
By: XXXXXXXX XXXXXXXX INVESTMENT
SERVICES, INC., its general partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
Address: 000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Nominee (name in which the
securities are registered if
different than name of Investor):
Lewco Securities Corp.
Tax I.D. No.: 00-0000000
WSIS FLEXIBLE INCOME PARTNERS L.P.
By: XXXXXXXX WERTHEIM INVESTMENT
SERVICES, INC., its general partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
Address: 000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Nominee (name in which the
securities are registered if
different than name of Investor):
Lewco Securities Corp.
Tax I.D. No.: 00-0000000
WSIS HIGH INCOME L.P.
By: XXXXXXXX XXXXXXXX INVESTMENT
SERVICES, INC., its general partner
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
Address: 000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Nominee (name in which the
securities are registered if
different than name of Investor):
Lewco Securities Corp.
Tax I.D. No.: 00-0000000
CASUAL DINING VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx, Xx.
Title: Senior Vice President
Address: One Corporate Place
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
-------------------
XXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx
-------------------
XXXXX XXXXXX
--------------------
XXXXXX X. XXXXXXXXX INC.
/s/ Xxxxxx X. Xxxxxxxxx Inc.
----------------------------
Xxxxxx X. Xxxxxxxxx, President
SCHEDULE 1
FMA High Yield Income L.P.
WSIS Flexible Income Partners L.P.
WSIS High Income L.P.
Howdy S. Kabrins
La Salsa, Inc.
Crown Associates III, L.P.
Crown-Xxxxx Associates, L.P.
Nueberger & Xxxxxx as Trustee for the Crown Trust
Xxxxxxxx X. Xxxxxxx
Noro-Xxxxxxx Partners II, X.X.
Xxxxxxx Salsa, L.P.
Bankers Trust Company as Master Trustee for Xxxxxx Aircraft Retirement Plans
Xxxxxxx X. Xxxxx
Sienna Limited Partnership I
Sienna Limited Partnership II
Sienna Holdings, Inc., as Nominee
InterWest Partners IV
Xxxxxx Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxx Inc.
Xxxxx Xxxxxxxxx
Casual Dining Ventures, Inc.
