REGISTRATION RIGHTS AGREEMENT
EXHIBIT
B
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”) is entered into as of the ___ day of _______, 2008, by and among
Restaurant Acquisition Partners, Inc., a Delaware corporation (the “Company”),
and Xxxx X. Xxxxxxx (the “Investor”).
WHEREAS,
pursuant to the terms and conditions of the Merger Agreement (as defined
below),
the Investor is receiving shares of Common Stock (as defined below); and
WHEREAS,
the
Investor and the Company desire to enter into this Agreement to provide the
Investor with certain rights relating to the registration of the Registrable
Securities (defined below) held by the Investor.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements set forth herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
The
following capitalized terms used herein have the following
meanings:
“Agreement”
means
this Agreement, as amended, restated, supplemented or otherwise modified
from
time to time.
“Commission”
means
the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common
Stock”
means
the common stock, par value $0.0001 per share, of the Company.
“Company”
is
defined in the preamble to this Agreement.
“Demand
Registration”
is
defined in Section 2.1.1.
“Demanding
Holder”
is
defined in Section 2.1.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect
at
the time.
“Indemnified
Party”
is
defined in Section 4.3.
“Indemnifying
Party”
is
defined in Section 4.3.
“Investor”
is
defined in the preamble.
“Investor
Indemnified Party”
is
defined in Section 4.1.
“Maximum
Number of Shares”
is
defined in Section 2.1.4.
“Merger
Agreement”
means
that certain Agreement and Plan of Merger made and entered into as of June_____,
2008, by and among Restaurant Acquisition Partners, Inc., Oregano’s Acquisition,
Inc., Oregano’s Holdings LLC, Oregano’s Pizza Bistro, Inc. and Xxxx X.
Xxxxxxx.
“Notices”
is
defined in Section 6.3.
“Piggy-Back
Registration”
is
defined in Section 2.2.1.
“Register,”
“Registered”
and
“Registration”
mean
a
registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act,
and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities”
mean
all of the shares of Common Stock owned or held by the Investor as of the
date
hereof. Registrable Securities include any shares of capital stock or other
securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of such shares of Common
Stock.
As to any particular Registrable Securities, such securities shall cease
to be
Registrable Securities when: (a) a Registration Statement with respect to
the
sale of such securities shall have become effective under the Securities
Act and
such securities shall have been sold, transferred, disposed of or exchanged
in
accordance with such Registration Statement; (b) such securities shall have
been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company; (c)
such
securities shall have ceased to be outstanding. or (d) the Registrable
Securities are salable without limitation under Rule 144. “Registration
Statement”
means
a
registration statement filed by the Company with the Commission in compliance
with the Securities Act and the rules and regulations promulgated thereunder
for
a public offering and sale of Common Stock (other than a registration statement
on Form S-4 or Form S-8, or their successors, or any registration statement
covering only securities proposed to be issued in exchange for securities
or
assets of another entity).
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations of
the
Commission promulgated thereunder, all as the same shall be in effect at
the
time.
“Underwriter”
means
a
securities dealer who purchases any Registrable Securities as principal in
an
underwritten offering and not as part of such dealer’s market-making
activities.
2. REGISTRATION
RIGHTS.
2.1 DEMAND
REGISTRATION.
2.1.1 REQUEST
FOR REGISTRATION.
Subject
to and in accordance with this Agreement, at any time after the first
anniversary hereof and prior to the fifth anniversary of the date hereof,
the
holders of at least 50% of the Registrable Securities held by the Investor
or
the transferees of the Investor, may make a written demand (a “Demand Request”)
for registration under the Securities Act of all or part of their Registrable
Securities (a “Demand Registration”). Any demand for a Demand Registration shall
specify the number of shares of Registrable Securities proposed to be sold
and
the intended method(s) of distribution thereof. The Company will notify all
other holders of Registrable Securities (and any other holder of Company
securities having contractual piggy-back registration rights entitled to
participate in such a registration (“Other Holder Piggyback Rights”) of the
demand, and each holder of Registrable Securities who wishes to include all
or a
portion of such holder’s Registrable Securities in the Demand Registration (each
such holder including shares of Registrable Securities in such registration,
a
“Demanding Holder”) shall so notify the Company in writing within fifteen
(15) days after the receipt by the holder of the notice from the Company.
Upon any such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to
Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company
shall not be obligated to effect more than (x) one (1) Demand Registration
during any twelve month period or (y) two (2) Demand Registrations in the
aggregate, in each case under this Section 2.1.1 in respect of Registrable
Securities.
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2.1.2 EFFECTIVE
REGISTRATION.
A
registration will not count as a Demand Registration until the Registration
Statement filed with the Commission with respect to such Demand Registration
covering all of the Registrable Securities specified in the notice received
pursuant to Section 2.1.1 has been declared effective and the Company has
complied with all of its obligations under this Agreement with respect thereto;
PROVIDED, HOWEVER, that if, after such Registration Statement has been declared
effective, the offering of Registrable Securities pursuant to a Demand
Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement
with respect to such Demand Registration will be deemed not to have been
declared effective, unless and until, (i) such stop order or injunction is
removed, rescinded or otherwise terminated and (ii) a majority-in-interest
of the Demanding Holders thereafter elect to continue the offering.
2.1.3 UNDERWRITTEN
OFFERING.
If a
majority-in-interest of the Demanding Holders so elect and such holders so
advise the Company as part of their written demand for a Demand Registration,
the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. In such event, the right
of
any holder to include its Registrable Securities in such registration shall
be
conditioned upon such holder’s participation in such underwriting and the
inclusion of such holder’s Registrable Securities in the underwriting to the
extent provided herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest of the holders initiating the Demand
Registration.
2.1.4 REDUCTION
OF OFFERING.
If the
managing Underwriter or Underwriters for a Demand Registration that is to
be an
underwritten offering advises the Company and the Demanding Holders in writing
that the dollar amount or number of shares of Registrable Securities which
the
Demanding Holders desire to sell, taken together with all other shares of
Common
Stock or other securities which the Company desires to sell and the shares
of
Common Stock, if any, as to which registration has been requested pursuant
to
Other Holder Piggyback Rights, exceeds the maximum dollar amount or maximum
number of shares that can be sold in such offering without adversely affecting
the proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum
number of shares, as applicable, the “Maximum Number of Shares”), then the
Company shall include in such registration: (i) first, the Registrable
Securities as to which Demand Registration has been requested by the Demanding
Holders and the securities as to which piggy-back registration has been
requested under Other Holder Piggyback Rights in effect as of the date hereof
has been made (pro rata in accordance with the number of shares of Registrable
Securities which such Demanding Holder and securities which holders of Other
Holder Piggyback Rights, as the case may be, have requested be included in
such
registration, regardless of the number of shares of Registrable Securities
held
by such Demanding Holder or securities held by such other holders) that can
be
sold without exceeding the Maximum Number of Shares; (ii) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the shares of Common Stock or other securities that
the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (iii) third, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (i) and (ii), the
shares of Common Stock for the account of other persons that the Company
is
obligated to register pursuant to written contractual arrangements with such
persons and that can be sold without exceeding the Maximum Number of Shares;
and
(v) fourth, to the extent that the Maximum Number of Shares have not been
reached under the foregoing clauses (i), (ii), and (iii), the shares of Common
Stock that other shareholders desire to sell that can be sold without exceeding
the Maximum Number of Shares.
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2.1.5 WTHDRAWAL.
If a
majority-in-interest of the Demanding Holders disapprove of the terms of
any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect
to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest of the
Demanding Holders withdraws from a proposed offering relating to a Demand
Registration, then such registration shall not count as a Demand Registration
provided for in Section 2.1.1.
2.2 PIGGY-BACK
REGISTRATION.
2.2.1 PIGGY-BACK
RIGHTS.
If at
any time after the first anniversary hereof and prior to the fifth anniversary
of the date hereof, the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering of equity securities,
or
securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities, by the Company for its own account or for shareholders
of the Company for their account (or by the Company and by shareholders of
the
Company including, without limitation, pursuant to Section 2.1), other than
a Registration Statement (i) filed in connection with any employee stock
option or other benefit plan, (ii) for an exchange offer or offering of
securities solely to the Company’s existing shareholders, (iii) for an
offering of debt that is convertible into equity securities of the Company
or
(iv) for a dividend reinvestment plan, then the Company shall (x) give
written notice of such proposed filing to the holders of Registrable Securities
as soon as practicable but in no event less than ten (10) days before the
anticipated filing date, which notice shall describe the amount and type
of
securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or Underwriters,
if any, of the offering, and (y) offer to the holders of Registrable
Securities in such notice the opportunity to register the sale of such number
of
shares of Registrable Securities as such holders may request in writing within
five (5) days following receipt of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use commercially reasonable efforts
to
cause the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included in
a
Piggy-Back Registration to be included on the same terms and conditions as
any
similar securities of the Company and to permit the sale or other disposition
of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to
distribute their securities through a Piggy-Back Registration that involves
an
Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration. The Company hereby agrees that after the date of this Agreement,
it will not grant piggyback registration rights to any third party which
would
have the effect of reducing the amount of Registrable Securities salable
by a
holder of Registrable Securities pursuant to Section 2.2.2 below.
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2.2.2 REDUCTION
OF OFFERING.
If the
managing Underwriter or Underwriters for a Piggy-Back Registration that is
to be
an underwritten offering advises the Company and the holders of Registrable
Securities in writing that the dollar amount or number of shares of Common
Stock
which the Company desires to sell, taken together with shares of Common Stock,
if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Registrable
Securities hereunder, the Registrable Securities as to which registration
has
been requested under this Section 2.2, and the shares of Common Stock, if
any, as to which registration has been requested pursuant to Other Holder
Piggyback Rights, exceeds the Maximum Number of Shares, then the Company
shall
include in any such registration:
(i) If
the
registration is undertaken for the Company’s account: (A) first, the shares of
Common Stock or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the securities as to which piggy-back registration has been
requested under existing Other Holder Piggyback Rights as of the date of
this
Agreement (pro rata in accordance with the number of securities each holder
has
actually requested to be included in such registration, regardless of the
number
of shares of Common Stock with respect to which such persons have the right
to
request such inclusion) that can be sold without exceeding the Maximum Number
of
Shares; (C) third, to the extent that the Maximum Number of Shares has not
been
reached under the foregoing clauses (A) and (B), Registrable Securities as
to
which registration has been requested under this Section 2.2 and (D) to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the shares of Common Stock as to which
registration has been requested pursuant to Other Holder Piggyback Rights
entered into after the date of this Agreement (pro rata in accordance with
the
number of shares such person has actually requested to be included in such
registration, regardless of the number of shares of Common Stock with respect
such person has the right to request inclusion).
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(ii) If
the
registration is a “demand” registration undertaken at the demand of persons
other than the holders of Registrable Securities pursuant to written contractual
arrangements with such persons, (A) first, the shares of Common Stock for
the
account of the demanding persons that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common
Stock
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(A)
and (B), the securities as to which piggy-back registration has been requested
under existing Other Holder Piggyback Rights as of the date of this Agreement
(pro rata in accordance with the number of securities each holder has actually
requested to be included in such registration, regardless of the number of
shares of Common Stock with respect to which such persons have the right
to
request such inclusion) that can be sold without exceeding the Maximum Number
of
Shares, (D) fourth, to the extent that the Maximum Number of Shares has not
been
reached under the foregoing clauses (A), (B) and (C), the Registrable Securities
as to which registration has been requested under this Section 2.2 (pro rata
in
accordance with the number of shares such person has actually requested to
be
included in such registration, regardless of the number of shares of Common
Stock with respect such person has the right to request inclusion); and (E)
fifth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A), (B),(C) and (D), the shares of Common Stock,
if
any, as to which registration has been requested pursuant to Other Holder
Piggyback Rights entered into after the date of this Agreement that can be
sold
without exceeding the Maximum Number of Shares.
2.2.3 WITHDRAWAL.
Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company may also elect to
withdraw a registration statement at any time prior to the effectiveness
of the
Registration Statement without thereby incurring any liability to the holders
of
Registrable Securities. Notwithstanding any such withdrawal, the Company
shall
pay all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 3.3.
3. REGISTRATION
PROCEDURES.
3.1 FILINGS;
INFORMATION.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2, the Company shall use commercially
reasonable efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method(s) of distribution thereof
as
expeditiously as practicable, and in connection with any such
request:
3.1.1 FILING
REGISTRATION STATEMENT. The Company shall, as expeditiously as possible and
in
any event within sixty (60) days after receipt of a request for a Demand
Registration pursuant to Section 2.1, prepare and file with the Commission
a Registration Statement on any form for which the Company then qualifies
or
which counsel for the Company shall deem appropriate and which form shall
be
available for the sale of all Registrable Securities to be registered thereunder
in accordance with the intended method(s) of distribution thereof, and shall
use
commercially reasonable efforts to cause such Registration Statement to become
and remain effective for the period required by Section 3.1.3; PROVIDED,
HOWEVER, that the Company shall have the right to defer any Demand Registration
for up to one hundred twenty (120) days, and any Piggy-Back Registration
for such period as may be applicable to deferment of any demand registration
to
which such Piggy-Back Registration relates, in each case if the Company shall
furnish to the holders a certificate signed by the Chief Executive Officer
of
the Company stating that, in the good faith judgment of the Board of Directors
of the Company, (x) such registration statement would require disclosure of
a material fact or plan that the Company believes would have a material adverse
effect on any proposal or plan by the Company to engage in any acquisition,
merger or other significant transaction, (y) the Company has filed a
registration statement relating to any of the Company’s securities and the
Company believes that the filing of the registration statement relating to
the
Registrable Securities would materially adversely effect the offering by
the
Company or the market for the Company’s securities after such an offering or (z)
it would be materially detrimental to the Company and its shareholders for
such
Registration Statement to be effected at such time; PROVIDED FURTHER, HOWEVER,
that the Company shall not have the right to exercise the right set forth
in the
immediately preceding proviso more than twice or for more than an aggregate
of
one hundred eighty (180) days in any 365-day period in respect of a Demand
Registration hereunder.
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3.1.2 COPIES.
The
Company shall, prior to filing a Registration Statement or prospectus, or
any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned
by
such holders.
3.1.3 AMENDMENTS
AND SUPPLEMENTS.
The
Company shall prepare and file with the Commission such amendments, including
post-effective amendments, and supplements to such Registration Statement
and
the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of
the
Securities Act until all Registrable Securities and other securities covered
by
such Registration Statement have been disposed of in accordance with the
intended method(s) of distribution set forth in such Registration Statement
(which period shall not exceed the sum of eighteen months plus any period
during
which any such disposition is interfered with by any stop order or injunction
of
the Commission or any governmental agency or court) or such securities have
been
withdrawn.
3.1.4 NOTIFICATION.
After
the filing of a Registration Statement, the Company shall promptly, and in
no
event more than two (2) business days after such filing, notify the holders
of Registrable Securities included in such Registration Statement of such
filing, and shall further notify such holders promptly and confirm such advice
in writing in all events within two (2) business days of the occurrence of
any of the following: (i) when such Registration Statement becomes
effective; (ii) when any post-effective amendment to such Registration
Statement becomes effective; (iii) the issuance or threatened issuance by
the Commission of any stop order (and the Company shall take all actions
required to prevent the entry of such stop order or to remove it if entered);
and (iv) any request by the Commission for any amendment or supplement to
such Registration Statement or any prospectus relating thereto or for additional
information or of the occurrence of an event requiring the preparation of
a
supplement or amendment to such prospectus so that, as thereafter delivered
to
the purchasers of the securities covered by such Registration Statement,
such
prospectus will not contain an 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 not misleading, and promptly make available to the holders
of
Registrable Securities included in such Registration Statement any such
supplement or amendment; except that before filing with the Commission a
Registration Statement or prospectus or any amendment or supplement thereto,
including documents incorporated by reference, the Company shall furnish
to the
holders of Registrable Securities included in such Registration Statement
and to
the legal counsel for any such holders, copies of all such documents proposed
to
be filed sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and comment
thereon.
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3.1.5 STATE
SECURITIES LAWS COMPLIANCE.
The
Company shall use commercially reasonable efforts to (i) register or
qualify the Registrable Securities covered by the Registration Statement
under
such securities or “blue sky” laws of such jurisdictions in the United States as
the holders of Registrable Securities included in such Registration Statement
(in light of their intended plan of distribution) may request and (ii) take
such action necessary to cause such Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may
be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; PROVIDED, HOWEVER, that the Company shall
not
be required to qualify generally to do business in any jurisdiction where
it
would not otherwise be required to qualify but for this Section 3.1.5 or
subject itself to taxation in any such jurisdiction.
3.1.6 AGREEMENTS
FOR DISPOSITION.
The
Company shall enter into customary agreements (including, if applicable,
an
underwriting agreement in customary form) and take such other actions as
are
reasonably required in order to expedite or facilitate the disposition of
such
Registrable Securities. The representations, warranties and covenants of
the
Company in any underwriting agreement which are made to or for the benefit
of
any Underwriters, to the extent applicable, shall also be made to and for
the
benefit of the holders of Registrable Securities included in such registration
statement. No holder of Registrable Securities included in such registration
statement shall be required to make any representations or warranties in
the
underwriting agreement except, if applicable, with respect to such holder’s
organization, good standing, authority, title to Registrable Securities,
lack of
conflict of such sale with such holder’s material agreements and organizational
documents, and with respect to written information relating to such holder
that
such holder has furnished in writing expressly for inclusion in such
Registration Statement.
3.1.7 COOPERATION.
The
principal executive officer of the Company, the principal financial officer
of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully
in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement
with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
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3.1.8 RECORDS.
The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such registration statement
and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
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, and cause the Company’s officers, directors and
employees to supply all information reasonably requested by any of them in
connection with such Registration Statement, in all cases, subject to all
such
persons’ respective agreements to maintain the confidentiality of all non-public
information furnished thereto pursuant to this Section 3.1.8.
3.1.9 OPINIONS
AND COMFORT LETTERS.
The
Company shall furnish to each holder of Registrable Securities included in
any
Registration Statement a signed counterpart, addressed to such holder, of
(i) any opinion of counsel to the Company delivered to any Underwriter and
(ii) any comfort letter from the Company’s independent public accountants
delivered to any Underwriter.
3.1.10 EARNINGS
STATEMENT.
The
Company shall comply with all applicable rules and regulations of the Commission
and the Securities Act, and make available to its shareholders, as soon as
practicable, an earnings statement covering a period of twelve (12) months,
beginning within three (3) months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11 LISTING.
The
Company shall use commercially reasonable efforts to cause all Registrable
Securities included in any registration to be listed on such exchanges or
otherwise designated for trading in the same manner as similar securities
issued
by the Company are then listed or designated or, if no such similar securities
are then listed or designated, in a manner satisfactory to the holders of
a
majority of the Registrable Securities included in such
registration.
3.2 OBLIGATION
TO SUSPEND DISTRIBUTION.
Upon
receipt of any notice from the Company of the happening of any event of the
kind
described in Section 3.1.4(iv) or upon any suspension by the Company, each
holder of Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by
Section 3.1.4(iv) or the restriction on the ability of “insiders” to
transact in the Company’s securities is removed, as applicable, and, if so
directed by the Company, each such holder will deliver to the Company all
copies, other than permanent file copies then in such holder’s possession, of
the most recent prospectus covering such Registrable Securities at the time
of
receipt of such notice.
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3.3 REGISTRATION
EXPENSES.
The
Company shall bear all costs and expenses incurred in connection with any
Demand
Registration pursuant to Section 2.1 and any Piggy-Back Registration
pursuant to Section 2.2, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not
the
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees; (ii) fees and expenses of
compliance with securities or “blue sky” laws (including fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the Company’s internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees); (v) the fees and expenses incurred in connection
with the listing of the Registrable Securities as required by
Section 3.1.11; (vi) Financial Industry Regulatory Authority fees;
(vii) fees and disbursements of counsel for the Company and fees and
expenses for independent certified public accountants retained by the Company
(including the expenses or costs associated with the delivery of any opinions
or
comfort letters requested pursuant to Section 3.1.9); and (viii) the
fees and expenses of any special experts retained by the Company in connection
with such registration. The Company shall have no obligation to pay any
underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the holders thereof, which underwriting discounts
or
selling commissions shall be borne by such holders. Additionally, in an
underwritten offering, all selling shareholders and the Company shall bear
the
expenses of the underwriter pro rata in proportion to the respective amount
of
shares each is selling in such offering.
3.4 INFORMATION.
The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any,
in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of
any
Registrable Securities under the Securities Act pursuant to Section 2 and
in connection with the Company’s obligation to comply with federal and
applicable state securities laws.
4. INDEMNIFICATION
AND CONTRIBUTION.
4.1 INDEMNIFICATION
BY THE COMPANY.
The
Company agrees to indemnify and hold harmless the Investor and each other
holder
of Registrable Securities, and each of their respective officers, employees,
affiliates, directors, partners, members, attorneys and agents, and each
person,
if any, who controls the Investor and each other holder of Registrable
Securities (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”),
from and against any expenses, losses, judgments, claims, damages or
liabilities, whether joint or several, arising out of or based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in
any
Registration Statement under which the sale of such Registrable Securities
was
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement,
or any
amendment or supplement thereto, or arising out of or based upon any omission
(or alleged omission) to state 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 promulgated thereunder
applicable to the Company and relating to action or inaction required of
the
Company in connection with any such registration; and the Company shall promptly
reimburse the Investor Indemnified Party for any legal and any other expenses
reasonably incurred by such Investor Indemnified Party in connection with
investigating and defending any such expense, loss, judgment, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable
in
any such case to the extent that any such expense, loss, claim, damage or
liability arises out of or is based upon any untrue statement or allegedly
untrue statement or omission or alleged omission made in such Registration
Statement, preliminary prospectus, final prospectus, or summary prospectus,
or
any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by such selling holder
expressly for use therein.
10
4.2 INDEMNIFICATION
BY HOLDERS OF REGISTRABLE SECURITIES.
Each
selling holder of Registrable Securities will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify
and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls the Company
or
such underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar
as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly
untrue
statement of a material fact contained in any Registration Statement under
which
the sale of such Registrable Securities was registered under the Securities
Act,
any preliminary prospectus, final prospectus or summary prospectus contained
in
the Registration Statement, or any amendment or supplement thereto, or arise
out
of or are based upon any omission or the alleged omission to state a material
fact required to be stated therein or necessary to make the statement therein
not misleading, if the statement or omission was made in reliance upon and
in
conformity with information furnished in writing to the Company by such selling
holder expressly for use therein, and shall reimburse the Company, its directors
and officers, and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigation or defending
any such loss, claim, damage, liability or action. Each selling holder’s
indemnification obligations hereunder shall be several and not joint and
shall
be limited to the amount of any net proceeds actually received by such selling
holder.
4.3 CONDUCT
OF INDEMNIFICATION PROCEEDINGS.
Promptly after receipt by any person of any notice of any loss, claim, damage
or
liability or any action in respect of which indemnity may be sought pursuant
to
Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim
in respect thereof is to be made against any other person for indemnification
hereunder, notify such other person (the “Indemnifying Party”) in writing of the
loss, claim, judgment, damage, liability or action; PROVIDED, HOWEVER, that
the
failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying
Party
may have to such Indemnified Party hereunder, except and solely to the extent
the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or
action
brought against the Indemnified Party, then the Indemnifying Party shall
be
entitled to participate in such claim or action, and, to the extent that
it
wishes, jointly with all other Indemnifying Parties, to assume control of
the
defense thereof with counsel reasonably satisfactory to the Indemnified Party.
After notice from the Indemnifying Party to the Indemnified Party of its
election to assume control of the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or
other expenses subsequently incurred by the Indemnified Party in connection
with
the defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that in any action in which both the Indemnified Party and the
Indemnifying Party are named as defendants, the Indemnified Party shall have
the
right to employ separate counsel (but no more than one such separate counsel)
to
represent the Indemnified Party and its controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, with the
fees
and expenses of such counsel to be paid by such Indemnifying Party if, based
upon the written opinion of counsel of such Indemnified Party, representation
of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No Indemnifying Party shall,
without
the prior written consent of the Indemnified Party, consent to entry of judgment
or effect any settlement of any claim or pending or threatened proceeding
in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
11
4.4 CONTRIBUTION.
4.4.1 If
the
indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party,
in
lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection
with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable considerations. The relative
fault of any Indemnified Party and any Indemnifying Party shall be determined
by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4.4.2 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by PRO RATA allocation or by
any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section.
4.4.3 The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection
with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no holder of Registrable Securities shall
be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions
or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. 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 such
fraudulent misrepresentation.
12
5. UNDERWRITING
AND DISTRIBUTION.
5.1 RULE
144.
The
Company covenants that it shall use commercially reasonable efforts to file
any
reports required to be filed by it under the Securities Act and the Exchange
Act
and to take such further action as the holders of Registrable Securities
may
reasonably request, all to the extent required from time to time to enable
such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1 ASSIGNMENT;
NO THIRD PARTY BENEFICIARIES.
This
Agreement and the rights, duties and obligations of the Company hereunder
may
not be assigned or delegated by the Company in whole or in part. This Agreement
and the rights, duties and obligations of the holders of Registrable Securities
hereunder may be freely assigned or delegated by such holder of Registrable
Securities in conjunction with and to the extent of any transfer of Registrable
Securities by any such holder. This Agreement and the provisions hereof shall
be
binding upon and shall inure to the benefit of each of the parties and their
respective successors and the permitted assigns of the Investor or holder
of
Registrable Securities or of any assignee of the Investor or holder of
Registrable Securities. This Agreement is not intended to confer any rights
or
benefits on any persons that are not party hereto other than as expressly
set
forth in Article 4 and this Section 6.1.
6.2 NOTICES.
All
notices, demands, requests, consents, approvals or other communications
(collectively, “NOTICES”) required or permitted to be given hereunder or which
are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by reputable air courier service with charges
prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall
have
specified most recently by written notice. Notice shall be deemed given on
the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile; PROVIDED, that if such service or transmission is not
on a
business day or is after normal business hours, then such notice shall be
deemed
given on the next business day. Notice otherwise sent as provided herein
shall
be deemed given on the next business day following timely delivery of such
notice to a reputable air courier service with an order for next-day
delivery.
To
the
Company:
if
to the
Company, to:
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxxxxxx X. Xxxxxx, Chief Executive Officer and President
Tel:
(000) 000-0000
Fax:
(000) 000-0000
13
With
a
copy to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Xx., Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
To
the
Investor, to:
c/o
Oregano’s Pizza Bistro, Inc.
0000
Xxxx
Xxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxx
Telephone:
000-000-0000
Facsimile:
000-000-0000
With
a
copy to:
Xxxxxxx
& Xxxxx, P.A.
Third
Floor Camelback Esplanade II
0000
Xxxx
Xxxxxxxxx Xxxx
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxxxxx Xxxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000)-000-0000
6.3 SEVERABILITY.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in
lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
6.4 COUNTERPARTS.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one
and the
same instrument.
6.5 ENTIRE
AGREEMENT.
This
Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether
oral
or written.
14
6.6 MODIFICATIONS
AND AMENDMENTS.
No
amendment, modification or termination of this Agreement shall be binding
upon
any party unless executed in writing by such party.
6.7 TITLES
AND HEADINGS.
Titles
and headings of sections of this Agreement are for convenience only and shall
not affect the construction of any provision of this Agreement.
6.8 WAIVERS
AND EXTENSIONS.
Any
party to this Agreement may waive any right, breach or default which such
party
has the right to waive, PROVIDED that such waiver will not be effective against
the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or
after
the right waived has arisen or the breach or default waived has occurred.
Any
waiver may be conditional. No waiver of any breach of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding
breach
thereof nor of any other agreement or provision herein contained. No waiver
or
extension of time for performance of any obligations or acts shall be deemed
a
waiver or extension of the time for performance of any other obligations
or
acts.
6.9 REMEDIES
CUMULATIVE.
In the
event that the Company fails to observe or perform any covenant or agreement
to
be observed or performed under this Agreement, the IPO Underwriter or any
other
holder of Registrable Securities may proceed to protect and enforce its rights
by suit in equity or action at law, whether for specific performance of any
term
contained in this Agreement or for an injunction against the breach of any
such
term or in aid of the exercise of any power granted in this Agreement or
to
enforce any other legal or equitable right, or to take any one or more of
such
actions, without being required to post a bond. None of the rights, powers
or
remedies conferred under this Agreement shall be mutually exclusive, and
each
such right, power or remedy shall be cumulative and in addition to any other
right, power or remedy, whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
6.10 GOVERNING
LAW.
This
Agreement shall be governed by, interpreted under, and construed in accordance
with the internal laws of the State of New York applicable to agreements
made
and to be performed within the State of New York, without giving effect to
any
choice-of-law provisions thereof that would compel the application of the
substantive laws of any other jurisdiction.
6.11 WAIVER
OF TRIAL BY JURY.
Each
party hereby irrevocably and unconditionally waives the right to a trial
by jury
in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to
this
Agreement, the transactions contemplated hereby, or the actions of the parties
in the negotiation, administration, performance or enforcement
hereof.
15
IN
WITNESS WHEREOF,
the
parties have caused this Registration Rights Agreement to be executed and
delivered by their duly authorized representatives as of the date first written
above.
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RESTAURANT
ACQUISITION PARTNERS, INC.,
a
Delaware corporation
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By:
____________________________________
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Name:
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Title:
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____________________________________
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Xxxx
X.
Xxxxxxx
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