EX-10.22
5
nrom_ex1022.htm
MATERIAL CONTRACTS
EXHIBIT 10.22
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of October 13, 2016, by and among Noble
Roman’s, Inc., an
Indiana corporation with offices at
0 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, XX 00000, and the investors signatory hereto
(each a “Purchaser” and
collectively, the “Purchasers”)
. This Agreement is made
pursuant to the Subscription Agreement and Investment Letter
executed by each of the Purchasers and the Company (the
“Subscription
Agreement”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and the Purchasers agree as follows:
1.
Definitions. Capitalized terms
used and not otherwise defined herein that are defined in the
Subscription Agreement shall have the meanings given such terms in
the Subscription Agreement. As used in this Agreement, the
following terms shall have the respective meanings set forth in
this Section
1.
“Affiliate” means any
Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed
under Rule 144.
“Business
Day” means any day except
Saturday, Sunday and any day that shall be a federal legal holiday
or a day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to
close.
“Common Stock” means the
Company’s common stock, no par value.
“Effective Date” means the
date that the Registration Statement filed pursuant to Section 2(a) is first declared
effective by the Commission.
“Effectiveness Date”
means: (a) with respect to the initial Registration Statement
required to be filed to cover the resale by the Holders of the
Registrable Securities, the earlier of: (i) the 90th day following
the final Closing Date or (ii) the fifth trading day following the
date on which the Company is notified by the Commission that the
initial Registration Statement will not be reviewed or is no longer
subject to further review and comments, and (b) with respect to any
additional Registration Statements that may be required pursuant to
Sections 2(a) and
(b) hereof, the
earlier of: (i) the 90th day following the date on which the
Company first knows, or reasonably should have known, that such
additional Registration Statement is required under such Sections
or (ii) the fifth trading day
following the date on which the Company is notified by the
Commission that such additional Registration Statement will not be
reviewed or is no longer subject to further review and comments.
“Effectiveness
Date” shall also have the meaning specified in
Section
2(b).
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“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Exchange Act” means the
Securities Exchange Act of 1934.
“Filing Date” means: (a)
with respect to the initial Registration Statement required to be
filed to cover the resale by the Holders of the Registrable
Securities, the 30th day following the final Closing Date, and (b)
with respect to any additional Registration Statements that may be
required pursuant to Sections 2(a) and (b) hereof, the 30th day
following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required under such Sections.
“Holder” or
“Holders” means the holder
or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party” shall
have the meaning set forth in Section 5(c).
“Indemnifying Party” shall
have the meaning set forth in Section 5(c).
“Losses” shall have the
meaning set forth in Section 5(a).
“Notes” means the
convertible subordinated notes that are convertible into Common
Stock purchased by the Purchasers as part of the
Units.
“Person” means an individual or
corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock
company, government (or an agency or 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 a 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 a Registration
Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
“Registrable Securities”
means the shares of Common Stock for which the Notes may be
converted and the Warrants may be exercised, together with any
securities issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event, or any Note
conversion rate or Warrant exercise price adjustment with respect
thereto.
“Registration Statement”
means each of the following: (i) an initial registration statement
which is required to register the resale of the Registrable
Securities, and (ii) each additional registration statement, if
any, contemplated by Sections 2(a) and (b), and including, in each
case, the Prospectus, amendments and supplements to each such
registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemed to be 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 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.
“Selling Stockholders”
shall have meaning defined in Section 3(b)(iii)
“Transfer
Agent” means the transfer agent for the Common
Stock.
“Transaction
Documents”
means this Agreement, the Subscription Agreement, the Notes, the
Warrants, and any other documents or agreements executed in
connection with the transactions contemplated hereunder and in the
Subscription Agreement.
“Units” means the Units
purchased by the Purchasers each consisting of one Note in the
principal amount of $50,000, fifty thousand Class A Warrant each to
Purchase one share of Common Stock and one Class B Warrant to
Purchase one share of Common Stock.
“Warrants” shall mean the
Class A Warrants and the Class B Warrants.
2.
Registration.
(a) Initial
Registration Statements. On or prior to each Filing Date, the
Company shall prepare and file with the Commission a Registration
Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement shall be on Form S-1, or another
appropriate form for such purpose, and shall contain (except if
otherwise required pursuant to written comments received from the
Commission upon a review of such Registration Statement) the
“Plan of Distribution” attached hereto as Annex A. The Company shall
cause the Registration Statement to be declared effective under the
Securities Act as soon as possible but, in any event, no later than
the Effectiveness Date, and shall use its best efforts to keep the
Registration Statement continuously effective under the Securities
Act until the date that is two years after the date that the
Registration Statement is declared effective by the Commission or
such earlier date when all Registrable Securities covered by the
Registration Statement have been sold or may be sold pursuant to
Rule 144(b)(i) as determined by the counsel to the Company pursuant
to a written opinion letter to such effect, addressed and
acceptable to the Transfer Agent and the affected Holders (the
“Effectiveness
Period”). It is agreed and understood that the Company
shall, from time to time, be obligated to file an additional
Registration Statement to cover any Registrable Securities that are
not registered for resale pursuant to a pre-existing Registration
Statement.
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(b) Additional
Registration Statements. If for any reason the Commission does not
permit all of the Registrable Securities to be included in the
Registration Statement filed pursuant to Section 2(a), then the Company
shall prepare and file as soon as possible after the date on which
the Commission shall indicate as being the first date or time that
such filing may be made, but in any event by the 30th day following such
date, an additional Registration Statement covering the resale of
all Registrable Securities not already covered by an existing and
effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415, on Form S-1 or another
appropriate form for such purpose. Each such Registration Statement
shall contain (except if otherwise required pursuant to written
comments received from the Commission upon a review of such
Registration Statement) the “Plan of Distribution”
attached hereto as Annex
A. The Company shall cause each such Registration Statement
to be declared effective under the Securities Act as soon as
possible (the “Effectiveness Date”) and
shall use its best efforts to keep such Registration Statement
continuously effective under the Securities Act during the entire
Effectiveness Period.
(c) Issuance
of Legal Opinion. Within three business days after the
Effectiveness Date of a Registration Statement, the Company shall
cause its counsel to issue a blanket opinion in the form attached
hereto as Exhibit
A, to the Transfer Agent stating that the Shares, as defined
therein, are subject to an effective registration statement and can
be reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied
with the prospectus delivery requirements, provided that the
Company has not advised the Transfer Agent in writing that the
opinion has been withdrawn. Copies of the blanket opinion required
by this Section
2(c) shall be delivered to the Purchasers within the time
period set forth above.
3.
Registration Procedures. In
connection with the Company’s registration obligations
hereunder, the Company shall:
(a) Not
less than four trading days prior to the filing of a Registration
Statement or any related Prospectus or any amendment or supplement
thereto, furnish to the Holders copies of all such documents
proposed to be filed, which documents (other than those
incorporated by reference) will be subject to review by such
Holders. The Company shall not file a Registration Statement or any
such Prospectus or any amendments or supplements thereto to which
the Holders of a majority of the Registrable Securities shall, in
writing, reasonably object in good faith.
(b) (i)
Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep
such Registration Statement continuously effective as to the
applicable Registrable Securities for its Effectiveness Period and
prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented or amended to be filed pursuant
to Rule 424; (iii) respond as promptly as reasonably possible, and
in any event within ten trading days, to any comments received from
the Commission with respect to each Registration Statement or any
amendment thereto and, as promptly as reasonably possible, provide
the Holders true and complete copies of all correspondence from and
to the Commission relating to such Registration Statement that
pertains to the Holders as selling stockholders (the
“Selling
Stockholders”) but not
any comments that would result in the disclosure to the Holders of
material and non-public information concerning the Company; and
(iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the
Registration Statements and the disposition of all Registrable
Securities covered by each Registration
Statement.
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(c) Notify
the Holders as promptly as reasonably possible (and, in the case of
(i)(A) below, not less than three trading days prior to such
filing) and (if requested by any such Holder) confirm such notice
in writing no later than one trading day following the day (i)(A)
when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B)
when the Commission notifies the Company whether there will be a
“review” of such Registration Statement and whenever
the Commission comments in writing on such Registration Statement
(the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders that pertain to
such Holder as a Selling Stockholder or to the Plan of
Distribution, but not information which the Company believes would
constitute material and non-public information); and (C) with
respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request
by the Commission or any other federal or state governmental
authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information that pertains to the
Holders as Selling Stockholders or the Plan of Distribution; (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement covering any or all of
the Registrable Securities or the initiation of any Proceedings for
that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of
any Proceeding for such purpose; and (v) of the occurrence of any
event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion
therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) Use
its best efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification
(or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest
practicable moment.
(e) Furnish
to each Holder, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto and all exhibits
to the extent requested by such Holder (including those previously
furnished or incorporated by reference) promptly after the filing
of such documents with the Commission; provided,
however,
that the Company shall have no obligation to provide any document
pursuant to this clause that is available on the XXXXX
system.
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(f) Promptly
deliver to each Holder, without charge, as many copies of each
Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto as such Holder may reasonably
request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior
to any public offering of Registrable Securities, use its best
efforts to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or
Blue Sky laws of those jurisdictions within the United States set
forth on Schedule
3(g) hereto to keep each such
registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statements; provided,
however,
that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or
subject the Company to any material tax in any such jurisdiction
where it is not then so subject or to take such actions in states
that require merit review.
(h) Cooperate
with the Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be delivered
to a transferee pursuant to the Registration Statements, which
certificates shall be free, to the extent permitted by the
Subscription Agreement, of all restrictive legends, and to enable
such Registrable Securities to be in such denominations and
registered in such names as any such Holders may request. The
Company shall cause the Transfer Agent to transmit the Registrable
Securities to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission system if the
Company is then a participant in such system.
(i) Upon
the occurrence of any event contemplated by Section
3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements
or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
no Registration Statement nor any Prospectus will contain 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, in light of the circumstances under which they were made,
not misleading.
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The
Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and any Affiliate
thereof.
4.
Registration
Expenses. All fees and expenses
incident to the Company’s performance of its obligation under
this Agreement (excluding any underwriting discounts and selling
commissions and all legal fees and expenses of legal counsel for
any Holder) shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the trading
market on which the Common Stock is then listed for trading, and
(B) in compliance with applicable state securities or Blue Sky
laws), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities and of
printing prospectuses if the printing of prospectuses is reasonably
requested by the holders of a majority of the Registrable
Securities included in the Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance, and
(vi) fees and expenses of all other Persons retained by the Company
in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be
responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting
duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable
Securities on any securities exchange as required
hereunder.
5.
Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, agents, attorneys, investment advisors,
partners, members, shareholders and employees of each of them, each
Person who controls any such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents, attorneys and employees of each such
controlling Person, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs
of preparation and reasonable attorneys’ fees) and expenses
(collectively, “Losses”),
as incurred, arising out of or relating to any untrue or alleged
untrue statement of a material fact contained in any Registration
Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto (it being understood that the
Holder has approved Annex A
hereto for this purpose) or in any
preliminary prospectus, or arising out of or relating to any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any Prospectus or form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent, that (1)
such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in the Registration Statement, such Prospectus or such form
of Prospectus or in any amendment or supplement thereto (it being
understood that each Holder has approved Annex A
hereto for this purpose) or (2) in the
case of an occurrence of an event of the type specified in
Section
3(c)(ii)-(v), the use by such
Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or
defective and prior to the receipt by such Holder of an Advice, as
defined in Section 6(c)
below, or an amended or supplemented
Prospectus, but only if and to the extent that following the
receipt of the Advice or the amended or supplemented Prospectus the
misstatement or omission giving rise to such Loss would have been
corrected. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the
Company is aware in connection with the transactions contemplated
by this Agreement.
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(b) Indemnification
by Holders. Each Holder shall, notwithstanding any termination of
this Agreement, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents, attorneys
and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents, attorneys or
employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon: (x) such
Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue statement of a
material fact contained in any Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or
supplement thereto, or arising solely out of or based solely upon
any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading to the
extent, but only to the extent that, (1) such untrue statements or
omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to such
Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in
writing by such Holder expressly for use in the Registration
Statement (it being understood that each Holder has approved
Annex
A hereto for this purpose),
such Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (2) in the case of an occurrence of an event
of the type specified in Section
3(c)(ii)-(v), the use by such
Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or
defective and prior to the receipt by such Holder of an Advice or
an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended or
supplemented Prospectus the misstatement or omission giving rise to
such Loss would have been corrected. In no event shall the
liability of any selling Holder hereunder be greater in amount than
the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be brought
or asserted against any Person entitled to indemnity hereunder (an
“Indemnified
Party”), such Indemnified
Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying
Party”) in writing, and
the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred
in connection with defense thereof; provided,
however,
that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and
materially adversely prejudiced the Indemnifying
Party.
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An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or Parties unless: (1) the
Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall
have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified
Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right
to assume the defense thereof and such counsel shall be at the
expense of the Indemnifying Party); provided,
however,
that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys at any time
for all Indemnified Parties. The Indemnifying Party shall not be
liable for any settlement of any such Proceeding effected without
its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such Proceeding in a
manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten trading days of written
notice thereof to the Indemnifying Party (regardless of whether it
is ultimately determined that an Indemnified Party is not entitled
to indemnification hereunder; provided,
however,
that the Indemnifying Party may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the extent it
is finally judicially determined that such Indemnified Party is not
entitled to indemnification hereunder).
(d) Contribution.
If a claim for indemnification under Section 5(a)
or 5(b)
is unavailable to an Indemnified Party
(by reason of public policy or otherwise), then each 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 Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or
omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity
to correct or prevent such action, statement or omission. The
amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth
in Section
5(c), any reasonable
attorneys’ or other reasonable fees or expenses incurred by
such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such
party in accordance with its terms.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d)
were determined by pro rata allocation
or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this
Section
5(d), no Holder shall be
required to contribute, in the aggregate, any amount in excess of
the amount by which the proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the
Proceeding exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged
omission.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
6.
Miscellaneous
(a) Remedies.
In the event of a breach by the Company or by a Holder, of any of
their obligations under this Agreement, each Holder or the Company,
as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that
monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be
adequate.
(b) Compliance.
Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(c) Discontinued
Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the
Company of the occurrence of any event of the kind described
in Section
3(c), such Holder will
forthwith discontinue disposition of such Registrable Securities
under the Registration Statement until such Holder’s receipt
of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the
“Advice”)
by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional
or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(d) Amendments
and Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed by the Company and
the Holder or Holders (as applicable) of no less than
a majority of the then outstanding
Registrable Securities. No
waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right
hereunder in any manner impair the exercise of any such
right.
-10-
(e) Notices.
Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via
facsimile or electronic transmission at the facsimile telephone
number or email address specified in this Section prior to 5:00
p.m. (
Indianapolis time) on a Business Day, (ii) the Business Day
after the date of transmission, if such notice or communication is
delivered via facsimile or electronic transmission at the facsimile
telephone number or email address specified in this Agreement later
than 5:00 p.m. (
Indianapolis time) on any date and earlier than
11:59 p.m. (
Indianapolis time) on such date, (iii) the Business Day
following the date of dispatch, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
|
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If
to the Company:
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|
|
Noble
Roman’s, Inc.
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|
|
|
0
Xxxxxxxx Xxxxxx
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|
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Xxxxx
000
|
|
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Xxxxxxxxxxxx,
XX 00000
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|
|
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Telephone:
(000)
000-0000
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Facsimile: (000)
000-0000
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Email Address:
xxxxxxx@xxxxxxxxxxx.xxx
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Attention:
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Xxxx X. Xxxxxx,
Executive Chairman
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If to a Purchaser:
To the
address set forth under such Purchaser’s name
on the signature pages hereto.
If
to any other Person who is then the registered Holder:
To
the address of such Holder as it appears in the stock transfer
books of the Company
or such other address as may be designated in writing hereafter, in
the same manner, by such Person.
(f) Successors
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company
may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Holders may assign their
respective rights hereunder in the manner and to the Persons as
permitted under the Subscription Agreement.
-11-
(g) Execution
and Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be
an original and, all of which taken together shall constitute one
and the same Agreement. In the event that any signature is
delivered by facsimile or electronic transmission, such signature
shall create a valid binding obligation of the party executing (or
on whose behalf such signature is executed) the same with the same
force and effect as if such facsimile or electronic signature were
the original thereof.
(h) Governing
Law; Venue. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by and construed and enforced in accordance with the internal laws
of the State of
Indiana, without regard to the principles of
conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought
against a party hereto or its respective Affiliates, employees or
agents) may be commenced in the state and federal courts sitting in
Xxxxxx County,
Indiana,. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such Proceeding
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) 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 contained herein shall be
deemed to limit in any way the right of a party to bring any action
or proceeding against another party or its property in the courts
of any other jurisdiction or the right of a party to serve process
in any manner permitted by law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any Proceeding arising
out of or relating to this Agreement or the transactions
contemplated hereby. If any party shall commence a Proceeding to
enforce any provisions of this Agreement, then the prevailing party
in such Proceeding shall be reimbursed by the other party for its
attorney’s fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such
Proceeding.
(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 by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, 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 in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.
-12-
(l) Independent
Nature of Purchasers’ Obligations and Rights. The obligations
of each Purchaser hereunder are several and not joint with the
obligations of any other Purchaser hereunder, and no Purchaser
shall be responsible in any way for the performance of the
obligations of any other Purchaser hereunder. The decision of each
Purchaser to purchase Units and/or Underlying Securities pursuant
to the Transaction Documents has been made independently of any
other Purchaser. Nothing contained herein or in any other agreement
or document delivered at any closing, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute
the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert with respect to such
obligations or the transactions contemplated by this Agreement.
Each Purchaser acknowledges that no other Purchaser has acted as
agent for such Purchaser in connection with making its investment
hereunder and that no Purchaser will be acting as agent of such
Purchaser in connection with monitoring its investment in the Units
and/or Underlying Securities or enforcing its rights under the
Transaction Documents. Each Purchaser shall be entitled to protect
and enforce its rights, including without limitation the rights
arising out of this Agreement, and it shall not be necessary for
any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
(m) Gender.
The use herein of the masculine pronouns or similar terms shall be
deemed to include the feminine and neuter genders as well and vice
versa and the use of the singular pronouns shall be deemed to
include the plural as well and vice versa.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
-13-
IN
WITNESS WHEREOF, the parties have executed this
Registration Rights
Agreement as of the date first written above.
NOBLE
ROMAN’S, INC.
By:_________________________________
Name:
Xxxx X. Xxxxxx
Title: Executive Chairman
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASER TO FOLLOW]
-14-
IN
WITNESS WHEREOF, the parties have executed this
Registration Rights
Agreement as of the date first written above.
[____________________________]
By:_____________________________________
Name:
Title:
Address
for Notice:
[___________________]
[___________________]
[___________________]
Facsimile
No.:
Email
Address:
Attn.:
With
a copy to:
[___________________]
[___________________]
[___________________]
Facsimile
No.:
Email
Address:
Attn:
-15-
EXHIBIT A
[Month
__, 201-]
[TRANSFER AGENT
]
Re:
Noble
Roman’s, Inc.
Registration
Statement on Form S-1
Ladies
and Gentlemen:
As
counsel to Noble Roman’s, Inc., an
Indiana corporation (the
“Company”), we have been requested to render our
opinion to you in connection with the resale by the individuals or
entitles listed on Schedule A attached hereto (the “Selling
Stockholders”), of an aggregate of [amount] shares (the
“Shares”) of the Company’s Common
Stock.
A
Registration Statement on Form S-1 under the Securities Act of 1933
(the “Act”), with respect to the resale of the Shares
was declared effective by the Securities and Exchange Commission on
[date]. Enclosed is
the Prospectus dated [date]. We understand that the
Shares are to be offered and sold in the manner described in the
Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholders at any
time while the registration statement remains effective, it is our
opinion that the Shares have been registered for resale under the
Act and new certificates evidencing the Shares upon their transfer
or re-registration by the Selling Stockholders may be issued
without restrictive legend. We will advise you if the registration
statement is not available or effective at any point in the
future.
Very
truly yours,
[Company counsel]
-16-
