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EXHIBIT 10.31.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") dated this 17th day
of November, 1997, is by and between BIKERS DREAM, INC., a California
corporation (the "Company"), and SIRROM CAPITAL CORPORATION d/b/a TANDEM
CAPITAL, a Tennessee corporation (the "Holder"). Capitalized terms not otherwise
defined shall have the meanings assigned by Section 11.
W I T N E S S E T H:
WHEREAS, the Company and the Holder have entered into a certain Loan
Agreement (the "Loan Agreement") of even date herewith that provides for, among
other things, the Company to grant to Holder certain registration rights with
respect to shares of the Company's common stock, no par value (the "Common
Stock"), as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Demand Registration.
1.1 Demand Rights. At any time on or after the earlier of (i)
March 31, 1998, or (ii) the date of the Company's 1997 audited financial
statements (which date shall be the date of the accompanying letter of the
Company's independent accountants) and during the term of this Agreement, if the
holders of at least 25% of the Registrable Securities outstanding ("Initiating
Holders") request in writing (a "Demand Request") that the Company register an
offering of Registrable Securities under the Securities Act of 1933, as amended
(the "Securities Act") by underwriters selected by the Initiating Holders,
subject to the approval of the Company which approval shall not be unreasonably
withheld, with anticipated gross offering proceeds of at least $200,000 (or such
lesser amount, at least $100,000, sufficient to register the public sale of all
remaining Registrable Securities), the Company shall:
(i) promptly give Notice of the Demand Request to all other
holders of Registrable Securities; and
(ii) use its best efforts to effect the registration and
sale of such Registrable Securities, together with all other Registrable
Securities specified in any written request received by the Company within 20
days after the date of the Notice of Demand Request, in accordance with the
intended method of disposition thereof, and in accordance with the procedures
set forth in Section 6.
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Provided, that if a Demand Request is made, the Company may at its option
repurchase all but not less than all of the Registrable Securities covered by
such Demand Request, at a purchase price per share equal to the Fair Market
Value (as defined in the Loan Agreement) of the Company's Common Stock on the
trading day immediately preceding the closing date for the repurchase. The
Company shall give written notice of its exercise of the option within 10 days
after receipt of such Demand Request. The notice shall specify (i) a closing
date not more than 30 days after the date of the notice, and (ii) the place of
closing. The repurchase price shall be paid at the closing to the Initiating
Holders, against delivery of certificates representing the Registrable
Securities, by wire transfer of immediately available funds.
1.2 Number of Demand Registrations. The holders of registration
rights under this Agreement shall be entitled to request an aggregate of five
registrations of Registrable Securities pursuant to this Section 1; and the
Company shall pay all Registration Expenses in connection with each such
registration request. The Company shall not be required to effect more than one
registration pursuant to Section 1.1 in any twelve month period. A registration
shall not count towards the maximum of five registration requests held by the
Holder hereunder unless the registration statement for such requested
registration has become effective and an offering closed in which all
Registrable Securities requested to be included in such registration by the
Initiating Holders shall have been sold. Provided, however, that the Company in
any event shall pay all Registration Expenses in connection with any requested
registration whether or not the registration statement becomes effective (unless
the failure to become effective is such as to require the Initiating Holders to
pay all Registration Expenses for such aborted or withdrawn registration
pursuant to Section 4 below, in which case (i) such Initiating Holders shall
reimburse the Company for all such Registration Expenses incurred and paid by
the Company in connection with such registration, and (ii) such withdrawn
request shall not count as a requested registration hereunder). Further
provided, that if (i) the Initiating Holders withdraw from or abort more than
one registration in any consecutive 12-month period, and (ii) the Initiating
Holders are required to pay Registration Expenses pursuant to Section 4 for more
than one such withdrawn or aborted registration, only one such registration
shall not be counted.
1.3 Other Securities and Priority. The registration statement
filed pursuant to the Demand Request may, subject to the prior written consent
of the Initiating Holders, include other securities of the Company, provided
that all Registrable Securities for which the Initiating Holders have requested
registration shall be covered by such registration statement and sold in such
offering before any such other securities are included and sold.
1.4 Limitations. The Company shall not be obligated to effect, or
to take any action to effect, any demand registration:
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(i) in any jurisdiction in which the Company would be
required to execute a general consent to service of process, unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
(ii) during the period beginning 45 days prior to the
Company's good faith estimate of the date of filing of, and ending 180 days
after the effective date of, a Company- initiated registration, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of
shares of Registrable Securities which may be immediately registered on Form S-3
pursuant to a request made under Section 3 hereof.
1.5 Deferral of Registration. If in the good faith judgment of
the Board of Directors of the Company, the filing of a registration statement as
soon as practicable after receipt of the Demand Request would be materially
detrimental to the Company and the Board of Directors of the Company concludes,
as a result, that it is advisable to defer the filing of such registration
statement at such time, in which case the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be materially detrimental to the Company for such registration statement
to be filed in the near future and that it is advisable to defer the filing of
such registration statement, then the Company shall have the right to defer such
filing for a period of not more than 120 days after receipt of the Demand
Request of the Initiating Holders, provided that the Company shall not defer its
obligations in this manner for more than an aggregate of 120 days in any
twelve-month period, and provided further that the Initiating Holders shall be
entitled to withdraw the request for registration within 30 days after receipt
of such certificate and, if such request is withdrawn, such registration shall
not count as a requested registration hereunder and the Company shall pay all
Registration Expenses incurred in connection with such withdrawn registration
request.
1.6 Underwriting. The right of any other holders of Registrable
Securities to join in a request for registration shall be conditioned upon such
holders' participation in such registration on the same terms as the Initiating
Holders (unless otherwise agreed by a majority in interest of the Initiating
Holders).
1.7 Inclusion of Other Securities. In any demand registration, if
the Company shall request inclusion of securities to be sold for its own
account, or if other persons entitled to incidental registrations shall request
inclusion in such registration, the Initiating Holders shall offer to include
such securities in the underwriting and may condition such offer on the
acceptance by the Company or such other persons of the provisions of this
Agreement and the underwriting. The Company and all such other persons proposing
to distribute securities through
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such underwriting shall enter into an underwriting agreement in customary form
with the underwriters selected by a majority in interest of the Initiating
Holders subject to the approval of the Company, which approval will not be
unreasonably withheld.
2. Piggyback Registration.
2.1 Notice and Procedures. If the Company proposes to register
under the Securities Act any of its Common Stock for sale to the public, either
for its own account or for the account of other security holders (other than
holders of Registrable Securities), the Company will:
(i) promptly give written notice thereof to each holder
of Registrable Securities; and
(ii) use its best efforts to include in such
registration and in any underwriting involved therein, all Registrable
Securities specified in any written request from holders of Registrable
Securities received by the Company within 15 days after such notice.
2.2 Limitations. The provisions of this Section 2 shall not apply
to any registration relating solely to employee benefit plans (as defined under
Rule 405 of the Securities Act), or a registration relating solely to securities
issued in connection with an acquisition or merger, or a registration on any
registration form not available for registering the Registrable Securities for
sale to the public or that does not permit secondary sales.
2.3 Underwriting. The right of any holder of Registrable
Securities to participate in a piggyback registration shall be conditioned upon
such holder's agreement to enter into an underwriting agreement in customary
form with the underwriters selected by the Company.
2.4 Underwriters' Cutback. Notwithstanding any other provision of
this Section 2, if the underwriters of any piggyback registration advise the
Company of the need for an Underwriters' Cutback, the underwriters may (subject
to the limitations set forth below) limit the number of Registrable Securities
to be included in the registration and sold. The Company shall advise all
holders of securities requesting registration of the Underwriters' Cutback, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter as set forth in Section
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2.5 Other Provisions. If holders of Registrable Securities
request participation in a piggyback registration, the provisions of Section 1.4
shall apply to such registration, and if the piggyback registration is for an
underwritten offering, the provisions of Sections 1.6 and 1.7
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shall also apply to such registration. Notwithstanding the foregoing provisions,
the Company may withdraw any registration statement referred to in this Section
2 without incurring any liability to the holders of the Registrable Securities.
3. Registration on Form S-3. After the Company has qualified for the use
of Form S-3, and for so long as the Company continues to be so qualified, in
addition to the rights contained in the foregoing provisions of this Agreement,
the holders of the Registrable Securities shall have the right to request
registrations on Form S-3 or any comparable or successor form. Each such request
shall be in writing and shall state the anticipated number of shares of
Registrable Securities to be disposed of, the anticipated gross proceeds of the
offering, and the intended methods of disposition of such shares by such
holders, including whether sales are to be made on a delayed or continuous basis
pursuant to Rule 415. The Company shall not be obligated to effect any
registration pursuant to this Section 3 if (i) the holders of Registrable
Securities, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other shares of Common Stock (if any) on Form S-3 at an
aggregate price to the public of less than $50,000, or (ii) the Company will be
required to obtain an audit (other than for its normal year-end audit) for such
registration to become effective. Sections 1.4(ii) and 1.5 shall apply to all
requests for registration under this Section 3. The Company shall only be
required to effect one registration of Registrable Securities pursuant to this
Section 3 in each calendar year.
4. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement, shall be borne by the Company; provided, however, that a holder of
Registrable Securities shall bear the Registration Expenses for any registration
process begun pursuant to Section 1 and subsequently withdrawn by such holder,
unless such withdrawal is based upon (i) material adverse information relating
to the Company that is different from the information known or available (upon
request from the Company or otherwise) to the Initiating Holders at the time of
the request for registration under Section 1, or (ii) material adverse changes
in the financial markets which result in a decline of at least 20 percent in the
public market price for the Company's Common Stock from the date of the request
to the date of such withdrawal. All Selling Expenses relating to securities
registered pursuant to this Agreement shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf.
5. Holdback Agreements.
5.1 By Holders. If requested in writing by the Company and the
managing underwriter of an underwritten registered public offering under this
Agreement by the Company of its Common Stock, the holders of Registrable
Securities shall agree not to sell or otherwise transfer or dispose of any
Common Stock of the Company held by such holders (other than those included in
the registration statement) for a period not to exceed 180 days following the
effective
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date of a registration statement of the Company filed under the Securities Act,
provided that all officers and directors of the Company, all other holders of
the Registrable Securities, and all other holders of rights to registration of
any other security of the Company, if they also register their shares in such
offering, enter into similar agreements identical in terms to that of the
holders of Registrable Securities.
5.2 By Company. In connection with any underwritten registration,
the Company shall not effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 90-day period
after the effective date of any underwritten registration pursuant to this
Agreement.
6. Registration Procedures. In the case of each registration effected by
the Company pursuant to this Agreement, the Company will use its best efforts to
effect the registration and sale of Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(i) prepare and file a registration statement with respect to
such offering of Registrable Securities, and use its best efforts to cause such
registration statement to become effective,
(ii) notify each holder of Registrable Securities of the
effectiveness of each registration statement hereunder and prepare and file with
the Securities and Exchange 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 90 days or until all Registrable Securities included in the registration
have been sold, whichever occurs first, 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 the sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable
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such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller;
(v) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make there statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(vi) cause all such Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed; or, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system, use its
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system security" within
the meaning of Rule 11a2-1 of the Securities and Exchange Commission; or, if not
so listed, to secure NASDAQ authorization for such Registrable Securities and to
cause such securities to be listed for trading on the over-the-counter market
and quoted on the National Association of Securities Dealers Electronic Bulletin
Board;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (not including effecting a stock
split or combination of shares);
(ix) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement, provided
that any recipient of such records, documents or information executes such
confidentiality agreement as the Company reasonably requests;
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(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) permit any holder of Registrable Securities which holder, in
its reasonable judgment, might be deemed to be an underwriter or controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which (i) with respect to matters relating to such
holder of Registrable Securities, should be included in the reasonable judgment
of such holder and its counsel, and (ii) with respect to matters relating to the
Company, should be included in the reasonable judgment of such holder, subject
in the case of clause (ii) to the approval of the Company and any managing
underwriter of the offering (which approval shall not be unreasonably withheld);
and
(xii) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities.
7. Indemnification.
7.1 By Company. The Company shall indemnify each holder of
Registrable Securities, each of its officers, directors, employees, agents, and
Affiliates, and each underwriter, and each of its officers, directors,
employees, agents, and Affiliates, against all expenses, claims, losses,
damages, and liabilities (or actions, proceedings, or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus (including any related
registration statement, notification, or the like) incident to any registration
under this Agreement, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, and will reimburse such persons for any legal and any
other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability or action;
provided however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by such holder or underwriter and stated to be
specifically for use therein; provided, further, however, that the holders of
Registrable Securities shall consent to such
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indemnity defense being conducted by counsel to the Company unless in the good
faith opinion of counsel to Holder, Company's counsel will be unable to
effectively defend such holders due to a conflict of interest, in which event,
such defense may be conducted by counsel selected by the holders of a majority
of the Registrable Securities provided that the Company will only be obligated
to pay for the fees and expenses owing to one such counsel. It is agreed that
the indemnity agreement contained in this Section shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the prior written consent of the Company (which
consent shall not be unreasonably withheld).
7.2 By Holders. In connection with the registration or sale of
shares of Registrable Securities pursuant to this Agreement, each holder whose
Registrable Securities are included in such registration being effected under
this Agreement, shall indemnify the Company, and each of its directors,
officers, employees, agents, and Affiliates, and each underwriter, and each of
its directors, officers, employees, agents, and Affiliates, against all claims
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement or prospectus, or any 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 persons for any legal or any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability, or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus, in reliance upon
and in conformity with written information furnished to the Company by such
holder of the Registrable Securities, and stated to be specifically for use
therein; provided, however, that the obligations of such holder hereunder shall
not apply to amounts paid in settlement of any such claims, losses, damages, or
liabilities if such settlement is effected without the prior written consent of
such holder, which consent shall not be unreasonably withheld; and provided that
in no event shall any indemnity under this Section 7.2 exceed the net amount of
proceeds from the offering received by such holder.
7.3 Procedure. Each party entitled to indemnification under this
Section (the "Indemnified Party") shall give notice to the party or parties
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be reasonably acceptable to the
Indemnified Party. Failure to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this section to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the
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giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
7.4 Contribution. If the indemnification provided for in this
Section is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
7.5 Conflicting Provisions. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in any
underwriting agreement entered into in connection with a registration are in
conflict with the foregoing provisions, the provisions of the underwriting
agreement shall control.
8. Information by Holder. Each holder of Registrable Securities shall
furnish to the Company in writing such information regarding such holder and the
distribution proposed by such holder as the Company or underwriters may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification, or compliance referred to in this
Agreement in order to assure compliance with federal and applicable state
securities laws.
9. Allocation of Registration Opportunities. In any circumstance in
which all of the Registrable Securities and other outstanding shares of Common
Stock of the Company (the "Other Shares") requested and entitled to be included
in a demand registration cannot be so included as a result of limitations on the
aggregate number of shares of Registrable Securities and Other Shares that may
be so included, or in case of an Underwriters' Cutback, the number of shares of
Registrable Securities and Other Shares that may be so included shall be
allocated among the holders of Registrable Securities and other selling
stockholders pro rata on the basis of the number of shares of Registrable
Securities and Other Shares held by such holders and other selling stockholders,
subject to the Company's being required to comply in good faith with contractual
obligations outstanding as of the date of this Agreement which do not require
the
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holders of Other Shares to agree to such pro rata allocation, but provided that
if Registrable Securities are not allocated such pro rata participation such
demand registration shall not be counted toward the maximum of five demand
requests under Section 1.2. If any holder of Registrable Securities or other
selling stockholder does not request inclusion of the maximum number of shares
of Registrable Securities and Other Shares allocated to him pursuant to this
procedure, the remaining portion of his allocation shall be reallocated among
those requesting holders of Registrable Securities and other selling
stockholders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Securities and Other Shares held by
such holders and other selling stockholders, and this procedure shall be
repeated until all of the shares of Registrable Securities and Other Shares
which may be included in the registration on behalf of the holders of
Registrable Securities and other selling stockholders have been so allocated.
Provided, however, the Company shall not limit the number of Registrable
Securities to be included in a registration pursuant to this Agreement in order
to include shares held by stockholders with no registration rights or to include
in that registration shares of stock issued to employees, officers, directors,
or consultants pursuant to any Company stock option plan, and in such case all
Registrable Securities covered by the registration shall be sold before any such
other securities are sold.
10. Survival of Rights. The right of any holder of Registrable
Securities to request registration or inclusion in any registration pursuant to
this Agreement shall terminate on the earlier of (i) such date as all shares of
Registrable Securities held by Holder shall equal less than 25% of the
outstanding Registrable Securities, or (ii) seven years from the date a Demand
Request may first be made under Section 1.1.
11. Definitions. As used herein,
"Loan Agreement" means the Loan Agreement between the Company and
Sirrom Capital Corporation d/b/a Tandem Capital dated November
_________________, 1997.
"Holder" means any person who holds Registrable Securities and
any holder of Registrable Securities to whom the registration rights conferred
by this Agreement have been transferred in compliance herewith.
"Initiating Holders" means holders of the Registrable Securities
who in the aggregate hold not less than 25 percent of the outstanding
Registrable Securities.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, sole proprietorship, trust or other entity,
business association or organization.
"Register," "registered" and "registration" refers to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933 and
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applicable rules and regulations thereunder, and such other actions as may be
required to cause such registration statement to become effective or with
respect to registration, qualification or compliance under applicable state
securities laws.
"Registration Expenses" means all expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, fees and
disbursements of custodians, fees and disbursements of counsel for the Company
and its independent certified public accountants, blue sky fees and expenses,
and reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities included in such registration, but shall
not include Selling Expenses.
"Registrable Securities" means shares of the Company's Common
Stock issued or issuable (i) upon exercise of the Warrants, and (ii) as a
dividend or other distribution with respect to, or in exchange for, or in
replacement of, the shares referred to in clause (i); provided, however, that
shares shall cease to be Registrable Securities if and when (x) they are sold
pursuant to Rule 144 under the Securities Act or a registration statement under
the Securities Act, or (y) such shares are eligible for resale pursuant to Rule
144 under the Securities Act without regard to any volume limitations
thereunder.
"Rule 144" means Rule 144 as promulgated by the SEC under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the SEC.
"Rule 145" means Rule 145 as promulgated by the SEC under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the SEC.
"Security" has the same meaning as in Section 2(1) of the
Securities of 1933, as amended.
"Selling Expenses" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities, and fees and disbursements of counsel for any stockholder (other
than the fees and disbursements of one counsel for the holders of Registrable
Securities, as selling stockholders, included in Registration Expenses).
"Underwriters' Cutback" means a reduction in the number of shares
to be included in any underwritten offering as the result of receipt of written
notice from the representative(s) of the underwriters to the effect that the
number of shares requested to be included in such registration exceeds the
number which, in the representative's judgment, can be sold in an orderly manner
in such offering within a price range acceptable to either the Company (in a
primary
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registration) or the majority of the holders initially requesting such
registration (in a secondary registration).
"Warrants" means the Initial Warrant and the Additional Warrant
issued by the Company to Holder pursuant to the Loan Agreement.
12. Notice of Transfer. The registration rights granted to the Holder
hereunder may be transferred to any transferee of not less than 100,000 shares
(adjusted appropriately for stock splits, stock dividends and the like) of
Registrable Securities; provided, however, that the registration rights of the
Holder may be transferred to a wholly-owned subsidiary of the Holder without
regard to the number of shares transferred. Each such permitted transferee must
agree in a written instrument provided to the Company to be bound hereby and
shall thereupon be deemed to be a "Holder" for purposes hereunder.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed by their duly authorized officers as of the date
first above written.
BIKERS DREAM, INC.
By: /s/ X. Xxxxxxxx
--------------------------------
Name:
--------------------------------
Title: CEO
--------------------------------
SIRROM CAPITAL CORPORATION
d/b/a TANDEM CAPITAL
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Vice-President
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