EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT FOR COMMON STOCK
This Registration Rights Agreement for Common Stock (the "Agreement")
is made and entered into September 30, 1997, by and among California Pizza
Kitchen, Inc., a California corporation (the "Company"), Bruckmann, Xxxxxx,
Xxxxxxxx & Co., L.P., a Delaware limited partnership ("BRS"), the individuals
and entities set forth on Exhibit A hereto (the "Additional Investors"), and
Xxxxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxx (the "Founding Investors"). BRS, the
Additional Investors and the Founding Investors, each of whom in their
individual capacity and as Trustee under the California Pizza Kitchen, Inc.
Voting Trust Agreement, dated March 1, 1990, as amended March 2, 1990 (the
"Voting Trust Agreement"), with respect to the shares of stock subject thereto,
are sometimes referred to hereinafter individually as an "Investor" and
collectively as the "Investors."
This Agreement is made pursuant to the Securities Holders Agreement
(as hereinafter defined). In order to induce the Investors to enter into the
Securities Holders Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the Rules
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promulgated under the Exchange Act.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the Common Stock of the Company as adjusted for
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any stock dividend or distribution payable thereon or stock split, reverse stock
split, recapitalization, reclassification, reorganization, exchange, subdivision
or combination thereof.
"Demand Registration" has the meaning set forth is Section 4(a) of
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this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
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from time to time.
"Person" means an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
"Registration Expenses" means the costs and expenses of all
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registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to this Agreement
(including all federal and state registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of the Company's independent public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
registration)) other than the costs and expenses of any Investors whose
Registrable Securities are to be registered pursuant to this Agreement
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any accountants or other representatives retained by any
Investor.
"Registration Statement" means any registration statement of the
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Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"Registrable Securities" has the meaning set forth in Section 2 of
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this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time.
"Securities Holders Agreement" means the Securities Holders Agreement
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dated as of the date hereof among the Company and the Investors.
"Special Registration Statement" means a registration statement on
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Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's employees or security holders or used in connection with the
acquisition of the business of another person or entity or used to offer or sell
a combination of debt and equity securities of the Company in which (i) not more
than 10% of the gross proceeds from such offering is attributable to the equity
securities and (ii) after giving effect to such offering, the Company does not
have a class of equity securities required to be registered under the Securities
Exchange Act of 1934, as amended.
"Underwritten registration" or "Underwritten offering" means a
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registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Registrable Securities. The securities entitled to the benefits of
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this Agreement are the Registrable Securities. As used herein, "Registrable
Securities" means the shares of Common Stock that are issued and outstanding on
the date hereof and the shares of Common Stock that become issued and
outstanding after the date hereof, in each case to the extent subject to the
Securities Holders Agreement; provided that each share of Common Stock shall
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cease to be a Registrable Security when (i) it has been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering it; (ii) it is distributed to the public pursuant to Rule 144
(or any similar provisions then in force) under the Securities Act; or (iii) it
has otherwise been transferred and a new certificate or other evidence of
ownership for it not bearing a legend as set forth in Section 2.2 of the
Securities Holders Agreement (or other legend of similar import) and not subject
to any stop transfer order has been delivered by or on behalf of the Company and
no other restriction on transfer exists under the Securities Act.
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3. Incidental Registration.
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(a) Right to Include Common Stock. If the Company at any time proposes
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to register any of its Common Stock under the Securities Act (other than on a
Special Registration Statement, but expressly including a Demand Registration
pursuant to Section 4(a) hereof), whether or not for sale for its own account,
it will each such time give at least 30 days prior written notice (the "Notice")
to all holders of Registrable Securities of its intention to file a registration
statement under the Securities Act and of such holders' rights under this
Section 3. Upon the written request of any such holders of Registrable
Securities made within 15 days of the date of the Notice (which request shall
specify the aggregate number of the Registrable Securities to be registered and
will also specify the intended method of disposition thereof), the Company will
effect the registration under the Securities Act of all Registrable Securities
which the Company has been so requested to register by the holders thereof (an
"Incidental Registration"), to the extent required to permit the public
disposition (in accordance with such intended methods thereof) of the
Registrable Securities to be so registered; provided, that (i) if, any time
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after giving written notice of its intention to register shares of Common Stock
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register the Company's Common Stock, the Company shall give written
notice of such determination to each holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith); (ii) if a registration
requested pursuant to this Section 3 shall involve an underwritten public
offering, any holder of Registrable Securities requesting to be included in such
registration may elect, in writing at least 20 days prior to the effective date
of the registration statement filed in connection with such registration, not to
register such securities in connection with such registration; and (iii) if, at
any time after the 180-day or shorter period specified in Section 5(b), the sale
of the securities has not been completed, the Company may withdraw from the
registration on a pro rata basis (based on the number of Registrable Securities
requested by each holder of Registrable Securities to be so registered) the
Registrable Securities which the Company has been requested to register and
which have not been sold.
(b) Priority in Incidental Registrations. If a registration pursuant
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to Section 3(a) involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the total number of shares
of Common Stock to be included in such registration, including the Registrable
Securities requested to be included pursuant to this Section 3, exceeds the
maximum number of shares of Common Stock specified by the managing underwriter
that may be distributed without adversely affecting the price, timing or
distribution of such shares of Common Stock, then the Company shall include in
such registration only such maximum number of Registrable Securities which, in
the reasonable opinion of such underwriter or underwriters, can be sold in the
following order of priority: (i) first, all of the shares of Common Stock that
the Company proposes to sell for its own account, if any, and (ii) second, the
Registrable Securities of BRS, the Additional Investors and the Founding
Investors requested to be included in such Incidental Registration. To the
extent that shares of Common Stock to be included in the Incidental Registration
must be allocated among the holders(s) of Registrable Securities pursuant to
clause (ii) above, such shares shall be allocated pro rata among the holders(s)
of Registrable Securities based on the number of shares of Common Stock that
such holders(s) of Registrable Securities shall have requested to be included
therein.
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(c) Expenses. The Company will pay all Registration Expenses in
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connection with any registration of Registrable Securities requested pursuant to
this Section 3.
(d) Liability for Delay. The Company shall not be held
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responsible for any delay in the filing or processing of a registration
statement which includes any Registrable Securities due to requests by holders
of Registrable Securities pursuant to this Section 3 nor for any delay in
requesting the effectiveness of such registration statement.
(e) Participation in Underwritten Registrations. No holder of
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Registrable Securities may participate in any underwritten registration
hereunder unless such holder (i) agrees to sell his or its Common Stock on the
basis provided in any underwriting arrangements approved by the persons who have
selected the underwriter and (ii) accurately completes in a timely manner and
executes all questionnaires, powers of attorney, underwriting agreements and
other documents customarily required under the terms of such underwriting
arrangements.
4. Demand Registration
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(a) Right to Demand Registration. Subject to Section 4(b) below,
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BRS shall be entitled to make a written request ("Demand Registration Request")
to the Company for registration with the Commission under and in accordance with
the provisions of the Securities Act of all or part of the Registrable
Securities owned by it (a "Demand Registration") (which Demand Registration
Request shall specify the intended number of Registrable Securities to be
disposed of by such holder and the intended method of disposition thereof);
provided, that (i) the Company may, if the Board of Directors so determines in
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the exercise of its reasonable judgment that due to a pending or contemplated
acquisition or disposition or public offering or other similar occurrence it
would be inadvisable to effect such Demand Registration at such time, defer such
Demand Registration for a single period not to exceed 180 days, and (ii) if the
Company elects not to effect the Demand Registration pursuant to the terms of
this sentence, no Demand Registration shall be deemed to have occurred for
purposes of this Agreement.
(b) Number of Demand Registrations. BRS shall be entitled to
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make one or more Demand Registration Requests at any time and from time to time
provided that the aggregate proceeds reasonably expected from the sale of
Registrable Securities (including Registrable Securities being sold by holders
of Registrable Securities other than BRS) pursuant to a Demand Registration are
$5 million or more. The Registration Expenses shall be borne by the Company.
(c) Priority on Demand Registration. If any of the Registrable
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Securities proposed to be registered pursuant to a Demand Registration are to be
sold in a firm commitment underwritten offering and the managing underwriter or
underwriters of a Demand Registration advise the Company and the holders of such
Registrable Securities in writing that in its or their reasonable opinion the
number of shares of Common Stock proposed to be sold in such Demand Registration
exceeds the maximum number of shares specified by the managing underwriter that
may be distributed without adversely affecting the price, timing or distribution
of the Common Stock, the Company shall include in such registration only such
maximum number of Registrable Securities which, in the reasonable opinion of
such underwriter or underwriters can be sold in the following order of priority:
(i) first, the Registrable Securities requested to be included in such Demand
Registration held by BRS, the Additional Investors and the Founding Investors,
provided that such
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amount shall be allocated among such other holders on a pro rata basis based
upon their respective percentage of ownership of the total number of shares of
Common Stock then outstanding and (ii) second, shares of Common Stock to be
offered by the Company in such Demand Registration.
5. Registration Procedures. If and whenever the Company is required
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to effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as reasonably possible:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities, and use its best efforts
to cause such registration statement to become effective, provided, however,
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that the Company may discontinue any registration of its securities which is
being effected pursuant to Sections 3 or 4 herein at any time prior to the
effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 180 days or such shorter period which will terminate
when all Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the 90-day period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder, if applicable) and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each such amendment and
supplement thereof (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall request, and do any and
all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall not
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be required to qualify generally to do business in any jurisdiction where it is
not then so qualified 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 or
subject itself to general taxation in any jurisdiction where it is not then so
subject;
(e) immediately notify each seller of any Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act within the appropriate period
mentioned in clause (b) of this Section 5, of the Company becoming aware that
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 within ten
days prepare and furnish to all sellers a reasonable number of copies of an
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amended or supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then listed
or NASDAQ if the Common Stock is then quoted on NASDAQ, if such Registrable
Securities are not already so listed or quoted and if such listing is then
permitted under the rules of such exchange or NASDAQ, and provide an independent
transfer agent and registrar for such Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(g) furnish to each seller of Registrable Securities
covered by such registration statement a signed counterpart, addressed to such
seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
involves an underwritten public offering, dated the date of the closing
under the underwriting agreement), reasonably satisfactory in form and
substance to the sellers of not less than 50% of such Registrable
Securities (and the managing underwriter, if any); and
(ii) a "comfort" letter, dated the effective date of
such registration statement (or, if such registration involves an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who
have certified the Company's financial statements included in such
registration statement, covering such matters with respect to such
registration statement as are customarily covered in accountants' letters
delivered to the underwriters in underwritten offerings of securities as
may reasonably be requested by the sellers of not less than 50% of such
Registrable Securities (and the managing underwriter, if any); and
(h) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (individually, an "Inspector" and
collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility (collectively, the "Records"), and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement; provided that any Records that are designated
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by the Company in writing as confidential shall be kept confidential by the
Inspectors unless (A) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (B) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or by any regulatory authority having
jurisdiction. Each Investor agrees that non-public information obtained by it as
a result of such Inspections shall be deemed confidential and acknowledges its
obligations under the Federal securities laws not to trade any securities of the
Company on the basis of material non-public information.
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The Company may require each seller of Registrable Securities as
to which any registration is being effected promptly to furnish to the Company
(i) an opinion of counsel for such seller dated the effective date of the
registration statement relating to such seller's Registrable Securities (or, if
such registration involves an underwritten public offering, dated the date of
the closing under the underwriting agreement), reasonably satisfactory in form
and substance to the Company (and the managing underwriter, if any) and (ii)
such information regarding the distribution of such Registrable Securities as
may be legally required. Such information shall be furnished in writing and
shall state that it is being furnished for use in the registration statement.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in clause (e) of this Section
5, such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5, and, if so directed by
the Company, such holder will deliver to the Company (at the Company's expense)
all copies, 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 the Company's notice. In the event the Company shall give any such
notice, the period mentioned in clause (b) of this Section 5 shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (e) of this Section 5 and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 5.
6. Indemnification.
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(a) Indemnification by the Company. The Company hereby
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agrees to indemnify and hold harmless each holder of Registrable Securities
which shall have been registered under the Securities Act, and such holder's
officers, directors and agents and each other Person, if any, who controls such
holder within the meaning of the Securities Act and each other Person (including
underwriters) who participates in the offering of such Registrable Securities
against any losses, claims, damages, liabilities, reasonable attorneys' fees,
costs or expenses (collectively, the "Damages"), joint or several, to which such
holder or controlling Person or participating Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact made by the Company or its agents
contained in any registration statement under which such Registrable Securities
are registered under the Securities Act, in any preliminary prospectus or final
prospectus contained therein, or in 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 not misleading, and will reimburse such holder of Registrable
Securities or such controlling Person or participating Person in connection with
investigating or defending any such Damages or proceeding; provided, however,
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that the Company will not be liable in any such case to the extent that any such
Damages arise out of or are based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
said preliminary or final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
holder or such controlling or participating Person, as the case may be,
specifically for use in the preparation thereof; or (ii) an untrue statement or
alleged untrue statement, omission or alleged omission in a prospectus if such
untrue statement or alleged untrue statement, omission or alleged omission is
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corrected in an amendment or supplement to the prospectus which amendment or
supplement is delivered to such holder in a timely manner and such holder
thereafter fails to deliver such prospectus as so amended or supplemented prior
to or concurrently with the sale of such Registrable Securities to the Person
asserting such Damages.
(b) Indemnification by the Holders of Registrable Securities
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Which Are Registered. It shall be a condition of the Company's obligations under
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this Agreement to effect any registration under the Securities Act that there
shall have been delivered to the Company an agreement or agreements duly
executed by each holder of Registrable Securities to be so registered, whereby
such holder agrees to indemnify and hold harmless the Company, its directors,
officers and agents and each other Person, if any, which controls the Company
within the meaning of the Securities Act against any Damages, joint or several,
to which the Company, or such other Person or such Person controlling the
Company may become subject under the Securities Act or otherwise, but only to
the extent that such Damages (or proceedings in respect thereof) arise out of or
are based upon any untrue statements or alleged untrue statement of any material
fact contained, on the effective date thereof, in any registration statement
under which such Registrable Securities are registered under the Securities Act,
in any preliminary prospectus or final prospectus contained therein or in any
amendment or supplement thereto, 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 not misleading, which, in
each such case, has been made in or omitted from such registration statement,
said preliminary or final prospectus or said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by
such holder of Registrable Securities specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above, with
respect to information furnished in writing by such Persons specifically for
inclusion in any prospectus or registration statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
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to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 6; and (ii) unless
the indemnified party has been advised by its counsel that a conflict of
interest exists between such indemnified and indemnifying parties under
applicable standards of professional responsibility, with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will consent to the entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation; provided, however, that no indemnifying party will consent to the
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entry of any judgment or enter into any settlement (other than for the payment
of money only) without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
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claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification
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provided for in the preceding Sections 6(a) or 6(b) is unavailable to an
indemnified party in respect of any Damages referred to therein, the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Damages in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties 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 to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action; provided,
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however, that in no event shall the liability of any selling holder of
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Registrable Securities hereunder be greater in amount than the difference
between the dollar amount of the proceeds received by such holder upon the sale
of the Registrable Securities giving rise to such contribution obligation and
all amounts previously contributed by such holder with respect to such Damages.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of fraudulent misrepresentation.
7. Hold-Back Agreements
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(a) Restrictions on Public Sale by Holder of Registrable
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Securities. Each holder of Registrable Securities whose Registrable Securities
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are eligible for inclusion in a Registration Statement filed pursuant to
Sections 3 or 4 agrees, if requested by the managing underwriter or underwriters
in an underwritten offering of any Registrable Securities, not to effect any
public sale or distribution of Registrable Securities, including a sale pursuant
to Rule 144 (or any similar provision then in force) under the Securities Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 90-day period (or such shorter period as may be agreed
to by the parties hereto) beginning on the effective date of such Registration
Statement, to the extent timely notified in writing by the Company or the
managing underwriter or underwriters.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such holder shall
undertake, in its request to participate in any such underwritten offering, not
to effect any public sale or distribution of Registrable Securities (except as
part of such underwritten registration) during such period unless it has
provided 45 days prior written notice of such sale or distribution to the
managing underwriter or underwriter.
(b) Restrictions on Public Sale by the Company and Others. The
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Company shall (i) not effect any public sale or distribution of any of its
Common Stock for its own account during the 10-day period prior to, and during
the 90-day period beginning on, the effective date of a Registration Statement
filed pursuant to Sections 3 or 4 (except as part of a Special Registration
Statement), and (ii) use reasonable efforts to cause each holder of Common Stock
purchased from the Company at any time after the date of this Agreement (other
than in a registered
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public offering) to agree not to effect any public sale or distribution of any
such securities during such period, including a sale pursuant to Rule 144 under
the Securities Act (except as part of such underwritten registration, if
permitted).
8. Underwritten Registration
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If any of the Registrable Securities covered by any Incidental
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Company and, in the case of a Demand Registration,
reasonably acceptable to BRS.
Notwithstanding anything herein to the contrary, no Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwritten arrangements approved by the Persons entitled hereunder to approve
such arrangement and (b) accurately completes and executes all questionnaires,
powers of attorney, indemnities, custody agreements, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Miscellaneous
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(a) Amendment and Modification. This Agreement may be amended
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or modified, or any provision hereof may be waived, provided that such amendment
or waiver is set forth in a writing executed by (i) the Company, (ii) BRS (so
long as BRS and its Affiliates own in the aggregate at least 25% of the
outstanding Common Stock on a fully diluted basis), (iii) the holders of a
majority of the shares of the Registrable Securities held by Investors other
than BRS, and (iv) in the case of any amendment which materially and adversely
affects any Investor differently from any other Investor, such Investor. No
course of dealing between or among any persons having any interest in this
Agreement will be deemed effective to modify, amend or discharge any part of
this Agreement or any rights or obligations of any person under or by reason of
this Agreement.
(b) Survival of Representations and Warranties. All
------------------------------------------
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
(c) Successors and Assigns: Entire Agreement. This Agreement
----------------------------------------
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understandings among the parties as to the subject matter hereof
and merges and supersedes all prior discussions and understandings of any and
every nature among them.
(d) Separability. In the event that any provision of this
------------
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
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(e) Notices. All notices provided for or permitted hereunder
-------
shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery to the
other party at the following addresses (or at such other address as shall be
given in writing by any party to the others):
If to the Company:
California Pizza Kitchen, Inc.
0000 Xxxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
Fax: (000) 000-0000
Confirm: (000) 000-0000
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: G. Xxxxxx X'Xxxxxxx, Esq.
Fax: (000) 000-0000
Confirm: (000) 000-0000
If to BRS:
Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx 0. Xxxxxx XX
Fax: (000) 000-0000
Confirm: (000) 000-0000
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: G. Xxxxxx X'Xxxxxxx, Esq.
Fax: (000) 000-0000
Confirm: (000) 000-0000
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If to Xxxxxxx X. Xxxxxxxxxx or Xxxxx X. Xxxx:
c/o California Pizza Kitchen, Inc.
0000 Xxxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Confirm: (000) 000-0000
in each case, with a required copy to:
Xxxxx & Kahan
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
Confirm: (000) 000-0000
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
(f) Governing Law. The validity, performance, construction and
-------------
effect of this Agreement shall be governed by and construed in accordance with
the internal law of California, without giving effect to principles of conflicts
of law.
(g) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
(h) Counterparts. This Agreement may be executed in two or more
------------
counterparts and by the parties hereto in separate 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 instrument.
(i) Further Assurances. Each party shall cooperate and take such
------------------
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(j) Termination. Unless sooner terminated in accordance with its
-----------
terms, this Agreement shall terminate on the fifteenth anniversary of the date
of this Agreement; provided that the indemnification rights and obligations set
forth in Section 6 hereof shall survive the termination of this Agreement.
(k) Remedies. In the event of a breach or a threatened breach by
--------
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement, it being
agreed
-12-
by the parties that the remedy at law, including monetary damages, for breach of
such provision will be inadequate compensation for any loss and that any defense
in any action for specific performance that a remedy at law would be adequate is
waived.
(l) Party No Longer Owning Securities. If a party hereto ceases
---------------------------------
to own any Securities, such party will no longer be deemed to be an Investor for
purposes of this Agreement; provided that the indemnification rights and
obligations set forth in Section 6 hereof shall survive any such cessation of
ownership.
(m) Pronouns. Whenever the context may require, any pronouns
--------
used herein shall be deemed also to include the corresponding neuter, masculine
or feminine forms.
(n) No Effect on Employment. Nothing herein contained shall
-----------------------
confer on any Investor the right to remain in the employ of the Company or any
of its subsidiaries or Affiliates.
(o) Attorneys' Fees. In the event any party hereto commences any
---------------
action to enforce any rights of such party hereunder, the prevailing party in
such action shall be entitled to recover such party's costs and expenses
incurred in such action, including, without limitation, reasonable attorneys'
fees.
-13-
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CALIFORNIA PIZZA KITCHEN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By BRS Partners, Limited Partnership, its general
partner,
By BRSE Associates, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
/s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx
Individually and as trustee under the Voting Trust
Agreement
/s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Individually and as trustee under the Voting Trust
Agreement
/s/ Xxxxx X. Xxxxxxxxx *
-----------------------------------------
Xxxxx X. Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
BCB FAMILY PARTNERS
By Xxxxx X. Xxxxxxxxx, General Partner
By: /s/ Xxxxx X. Xxxxxxxxx *
-----------------------------------------
Name:
Title:
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/s/ Xxxxxx Xxxxxxxxx *
---------------------------------------
Xxxxxx Xxxxxxxxx
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
NAZ FAMILY PARTNERS
By Xxxxx X. Xxxxx, General Partner
By: /s/ Xxxxx X. Xxxxx *
-----------------------------------
Name:
Title:
/s/ Xxxxx X. Xxxxx *
---------------------------------------
Xxxxx X. Xxxxx
Address: 000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
/s/ H. Xxxxxx Xxxxxxxx *
---------------------------------------
H. Xxxxxx Xxxxxxxx
Address: Xxx Xxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx *
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
Address: 000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxxx *
---------------------------------------
Xxxx X. Xxxxxxxx
Address: 00 X. 0xx Xxxxxx
Xxx Xxxx, XX 00000
-15-
/s/ X. Xxxx Xxxxxxx*
--------------------------------------
X. Xxxx Xxxxxxx
Address:
/s/ Xxxxxxxx Xxxxxx*
--------------------------------------
Xxxxxxxx Xxxxxx
Address:
XXXXXX XXXX SBIC, L.P.
By Xxxxxx Xxxx SBIC Investments L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
Title: EUD
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxx Xxxxxx
--------------------------------------
Xxx Xxxxxx
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
BANCBOSTON INVESTMENTS INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
/s/ Xxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxx Xxx Xxxxxx, #0X
Xxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
Address: 00 Xxxx 00xx Xx.
Xxx Xxxx, XX 00000
/s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx
Address: 000 Xxxxx Xxxx Xx.
Xxxxxxx, XX 00000
/s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
Address: 00 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
/s/ H. Xxxxxx Xxxxx III
--------------------------------------
H. Xxxxxx Xxxxx III
Address: 0 Xxxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx Xxxxx
Address: 00 Xxxxxxxx Xxxx Xxxxx
Xxx, XX 00000
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx, III
--------------------------------------
Xxxxxxx X. Xxxxxxxx, III
Address: 00 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
-17-
/s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Address: 00 Xxxx 00xx Xx., #0X
Xxx Xxxx, XX 00000
GLEACHER IV, L.P.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
General Partner
c/o Gleacher Natwest, Inc.
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
* By Xxxxxx X. Xxxxxx, as attorney-in-fact.
-18-
