EXHIBIT 10.42
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "Agreement")
is dated as of April 10, 2003, by and among BRIAZZ, Inc., a Washington
corporation with its principal offices at 0000 - 0xx Xxxxxx Xxxxx, #000,
Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and Spinnaker Investment Partners,
L.P., a Delaware limited partnership ("Spinnaker"), Briazz Venture, L.L.C., an
Illinois limited liability company ("Briazz Venture", together with Spinnaker,
"Purchasers"). This Agreement amends and restates in its entirety the
Registration Rights Agreement dated March 6, 2003 between the Company and Briazz
Venture.
RECITALS
Pursuant to the Amended and Restated Purchase Agreement dated as of Xxxxx
0, 0000 (xxx "XX Purchase Agreement"), the Company sold and issued to Briazz
Venture a warrant to purchase shares of the Company's common stock (the "BV
Warrant") equal to 19.99% of the outstanding Common Stock as of the date of the
BV Purchase Agreement, at a purchase price per Share of $0.50 pursuant to a
Warrant to Purchase Shares of Common Stock of even date herewith and one hundred
shares of Series D preferred stock ("Series D Preferred Stock"), the terms and
conditions of which are set forth the Articles of Amendment to the Company's
Articles of Incorporation. Pursuant to the Purchase Agreement dated as of April
10, 2003 (the "Spinnaker Purchase Agreement"), the Company sold and issued to
Spinnaker a warrant to purchase shares of the Company's common stock (the
"Spinnaker Warrant") equal to approximately 19.9% of the outstanding Common
Stock as of the date of the Spinnaker Purchase Agreement, at a purchase price
per Share of $0.50 pursuant to a Warrant to Purchase Shares of Common Stock of
even date herewith and twenty-five shares of Series E preferred stock ("Series E
Preferred Stock"), the terms and conditions of which are set forth the Articles
of Amendment dated April 9, 2003. The BV Warrant and Spinnaker Warrant are
exercisable and the Series D and Series E Preferred Stock is convertible, in
certain circumstances, into shares of common stock of the Company (the
"Shares"). The BV Purchase Agreement, the BV Warrant, the Series D Preferred
Stock and the note and security agreement issued in connection with the BV
Purchase Agreement are referred to herein as the "BV Purchase Documents." The
Spinnaker Purchase Agreement, the Spinnaker Warrant, the Series E Preferred
Stock and the note and security agreement issued in connection with the
Spinnaker Purchase Agreement are referred to herein as the "Spinnaker Purchase
Documents."
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
For purposes of this Agreement:
(a) The term "Act" shall mean the Securities Act of 1933, as amended.
(b) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act of 1933, as
amended (the "Act"), and the declaration or ordering of effectiveness
of such registration statement or document;
(c) The term "Registrable Securities" means (i) the Shares issuable or
issued upon exercise of the BV Warrant and the Spinnaker Warrant and
conversion of the Series D and Series E Preferred Stock, and (ii) any
common stock of the Company ("Common Stock") issued as (or issuable
upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of, such securities,
excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which its rights under this Agreement are
not assigned or assignable;
(d) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which
are, Registrable Securities;
(e) The term "Registration Statement" shall mean any registration
statement under the Act that includes Registrable Securities.
(f) The term "Holder" means any Purchaser and any permitted transferees
under the terms of this Agreement;
(g) The term "affiliate" shall mean with respect to any person, any other
person which directly or indirectly, by itself or through one or more
intermediaries, controls, or is controlled by, or is under direct or
indirect common control with, such person;
(h) The term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities, by
contract or otherwise; and
(i) The term "Form S-3" means such form under the Act as in effect on the
date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission (the "SEC") which
similarly permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with
the SEC.
2. Initial Registration.
The Company shall, subject to the limitations of Section 5, use its best
efforts to effect within ninety (90) days of satisfying one or both of the
Laurus Conditions (defined below) the registration under the Act of all
Registrable Securities then outstanding. Notwithstanding the foregoing, (i) if
the Company shall furnish to Holders requesting a registration statement
pursuant to this Section 2, 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, including a
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majority of the directors designated or nominated by Flying Food Group, LLC, or
its affiliates (collectively, "FFG") and Spinnaker, if any, it would be
seriously detrimental to the Company and its shareholders for such registration
statement (or any amendment thereto) to be filed and it is therefore essential
to defer the filing of such registration statement (or any amendment thereto),
the Company shall have the right to defer such filing for a period of not more
than sixty (60) additional days; and (ii) the Company will not be required to
cause the registration statement to be declared effective, and Holders will not
be permitted to transfer or sell the Registrable Securities pursuant to the
registration statement unless and until: (x) Laurus Master Fund, Ltd. ("Laurus")
consents to the effectiveness of the registration statement or (y) the
Promissory Note in the original principal amount of $1,250,000, dated June 18,
2002, between Laurus and the Company, is repaid in full (collectively the
"Laurus Conditions".)
3. Company Registration
If (but without any obligation to do so) the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its Common Stock under the Act in
connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants in
a Company stock-based incentive plan), the Company shall, at each such time,
promptly give each Holder written notice of such registration. The Company shall
include in such registration, subject to the provisions of Sections 5, 8 and 9,
all the Registrable Securities then outstanding and specified in a written
request or requests made by Holders within (15) days after the date of the
written notice by the Company of such registration. A Holder's written request
may specify that all or a portion of such Holder's Registrable Securities be
registered in the registration.
4. Obligations of the Company.
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) file with the SEC a Registration Statement under the Act on Form S-1,
Form S-3 or such other form, as required by the applicable provision
of this Agreement, as is appropriate to register the resale of
Registrable Securities by the selling Holders;
(b) use its best efforts, subject to receipt of necessary information from
the selling Holders, to cause such Registration Statement to become
effective (i) in the case of a Section 2 registration, within 90 days
after the issuance of the Notes pursuant to the Purchase Agreement,
and (ii) in the case of a Section 3 or 11 registration, as promptly
after filing as practicable;
(c) prepare and file with the SEC 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
until (i) in the case of a Section 2 registration, the earlier to
occur of (A) such time as no Holder named in the Registration
Statement holds or has the right to receive any of the Registrable
Securities registered therein or (B) such time as such Holders may
sell their
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Registrable Securities pursuant to Rule 144(k) of the Act or pursuant
to any similar rules that may be promulgated without volume
limitations, and (ii) in the case of a Section 3 or 11 registration,
such time as no Holder named in the Registration Statement holds or
has the right to receive any of the Registrable Securities registered
therein;
(d) furnish to the selling Holders with respect to the Registrable
Securities registered on the Registration Statement (and to each
underwriter, if any, of such Registrable Securities) such number of
copies of the Registration Statement and supplements to the prospectus
contained therein and such other documents as the selling Holders or
underwriter may reasonably request in order to facilitate the public
sale or other disposition of all or any of the Registrable Securities
by the selling Holders;
(e) use its best efforts to register and qualify the Registrable
Securities covered by such Registration Statement under such other
securities or "Blue Sky" laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
(f) promptly notify the selling Holders of the time when such Registration
Statement has become effective or a supplement to any prospectus
forming a part of such Registration Statement has been filed;
(g) promptly notify the selling Holders of any request by the SEC after
the Registration Statement has become effective for the amending or
supplementing of the Registration Statement or prospectus or for
additional information;
(h) prepare and file with the SEC, promptly upon the request of any
selling Holder, any amendments or supplements to such Registration
Statement or prospectus which, in the reasonable opinion of counsel
for such selling Holder are required under the Act or the rules and
regulations thereunder in connection with the distribution of
Registrable Securities by such selling Holder;
(i) prepare and promptly file with the SEC and promptly notify the selling
Holders of the filing of such amendment or supplement to the
Registration Statement or prospectus as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Act, any
event shall have occurred as the result of which any such prospectus
or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(j) advise the selling Holders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the
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effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its
best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued;
(k) if such registration includes an underwritten public offering or upon
written request by any selling Holder or group of selling Holders
whose Registrable Securities shall be included in such Registration
Statement with an aggregate market value at the date of such request
exceeding $500,000, furnish on the effective date of the Registration
Statement and, if such registration includes an underwritten public
offering, at the closing provided for in the underwriting agreement:
(i) opinions, dated such respective date, of the counsel representing
the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the selling Holder or Holders making such
request, covering such matters as such underwriters and selling Holder
or Holders may reasonably request and (ii) letters, dated such
respective dates, from the independent certified public accountants of
the Company, addressed to the underwriters and selling Holder or
Holders, covering such matters as such underwriters and selling Holder
or Holders may reasonably request, in which letters such accountants
shall state (without limiting the generality of the foregoing) that
they are independent certified public accountants within the meaning
of the Act and that in the opinion of such accountants the financial
statements and other financial data of the Company included in the
Registration Statement or any amendment or supplement thereto comply
in all material respects with the applicable accounting requirements
of the Act;
(l) otherwise comply with all applicable rules and regulations of the SEC;
(m) cause all the Registrable Securities covered by such Registration
Statement to be included for quotation on the Nasdaq SmallCap Market;
(n) provide a transfer agent and registrar for all Registrable Securities
covered by such Registration Statement and a CUSIP number for all such
Registrable Securities to the extent not already provided, in each
case not later than the effective date of such registration;
(o) provide the selling Holders and any underwriters of Registrable
Securities a reasonable opportunity to perform due diligence
concerning the Company, including a reasonable opportunity to
interview officers and employees of the Company and to review
documents relating to the Company; and
(p) make available its officers and employees and otherwise provide
reasonable assistance (taking into account the needs of the Company's
business) to any underwriters of Registrable Securities in their
marketing of Registrable Securities.
(q) cooperate with each selling Holder and each underwriter in connection
with the filing required to be made with NASD.
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5. Limitations; Agreements of Holders.
(a) it shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement with respect to any selling
Holder that such selling Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it
and the intended method of disposition of such securities as shall be
reasonably requested by the Company in effecting the registration of
its Registrable Securities and to execute such documents in connection
with such registration as the Company may reasonably request.
(b) the Company may at any time that it is eligible to do so, prepare and
file an amendment or supplement to the Registration Statement or
prospectus with the SEC and promptly notify the selling Holders of the
filing of such amendment or supplement to the Registration Statement
or prospectus as the Company may desire in order to effect the
conversion of the Registration Statement from Form S-1 to Form S-3, or
vice versa;
(c) each Holder agrees that, if so requested by the Company, it will not
effect any offer or sale of shares pursuant to the Registration
Statement, or otherwise, or engage in any hedging or other transaction
intended to reduce or transfer the risk of ownership for any period
deemed necessary (i) by the Company in connection with a notice
provided pursuant to Section 4(g) or 4(j) or a proposed supplement or
amendment pursuant to Section 4(h) or 4(i), or (ii) by the Company at
any other time that the Company determines, in its sole discretion,
that the existence of material nonpublic information regarding the
Company or other circumstances make such activities inappropriate. Any
period within the period provided for in Section 4(c) during which the
Company fails to keep the Registration Statement effective and usable
for resales of the Registrable Securities, or requires pursuant to
this subsection that the Holders not effect sales of shares pursuant
to the Registration Statement, is hereafter referred to as a
"Suspension Period." A Suspension Period shall commence on the date
set forth in a written notice by the Company to the Holders that the
Registration Statement is no longer usable for resales of shares or,
in the case of a suspension pursuant to this subsection the date
specified in the notice delivered by the Company pursuant to this
subsection, and shall end on the date when each holder of shares
covered by the Registration Statement either receives the copies of
the supplemented or amended prospectus contemplated by herein or is
advised in writing by the Company that use of the prospectus or sales
may be resumed. If the event that any Suspension Period occurs, the
effective period under Section 4(c) shall be extended by an amount of
time equal to the Suspension Period.
(d) each Holder agrees that, if so requested by the Company, it shall keep
the fact of any notification pursuant to Section 4(g), 4(j) or 5(c)
and the contents of any such notification confidential.
6. Liquidated Damages
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(a) The Company acknowledges and agrees that Purchaser shall suffer
damages and that it would not be feasible to ascertain the extent of
such damages with precision if the Company fails to fulfill certain of
its obligations hereunder. Accordingly, in the event of such failure,
the Company agrees to pay to Purchaser, as liquidated damages, and not
as a penalty, under the circumstances and to the extent set forth
below:
(i) if, pursuant to Section 2 hereof, the registration statement
covering all of the Registrable Securities then outstanding has not
been filed with the SEC on or prior to 90 days after the issuance of
the Warrant and the Series D Preferred Stock;
(ii) if such registration statement is not declared effective by
the SEC on or prior to 150 days after the issuance of the Notes
pursuant to the Purchase Agreement;
(iii) if the registration of the Registrable Securities is not
consummated on or before the 30th Business Day after the date on which
the such registration statement is declared effective by the SEC; or
(iv) if such registration statement is filed and declared
effective by the SEC, but thereafter ceases to be effective at any
time prior to the time that the Registrable Securities are sold by the
Holders thereof subject to the Registration Statement.
(each of the foregoing an "Event," and the date on which the Event occurs being
referred to herein as an "Event Date").
(b) Upon the occurrence of any Event, the Company shall pay, as liquidated
damages, and not as a penalty, to Purchaser for each weekly period
beginning on the Event Date an amount equal to the Liquidated Damages;
provided, that such Liquidated Damages, in each case, shall cease to
accrue (subject to the occurrence of another Event) on the date on
which all Events have been cured. The Company shall not be required to
pay Liquidated Damages for more than one Event at any given time. An
Event under clause (i) above shall be cured on the date that the
registration statement is filed with the SEC; and an Event under
clause (ii) above shall be cured on the date that the registration
statement is declared effective by the SEC; and an Event under clause
(iii) above shall be cured on the date on which the registration
statement is no longer subject to an order suspending the
effectiveness thereof or proceedings relating thereto. The Liquidated
Damages will be determined by multiplying the applicable Liquidated
Damages rate by the principal amount of the Notes, multiplied by a
fraction, the numerator of which is the number of days such Liquidated
Damages rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months) and the
denominator of which is 360.
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(c) The Company shall notify Purchaser of the occurrence of an Event
within five Business Days after each Event Date. The Company shall pay
the liquidated damages due by transferring to Purchaser, by 12:00
noon, Chicago time, immediately available funds in sums sufficient to
pay the Liquidated Damages then due. The Liquidated Damages due shall
be payable in the same manner as interest payments on the Notes on
each interest payment date to Purchaser to be made on such date as set
forth in the Notes.
(d) For purposes of this Section 6, "Liquidated Damages" means, with
respect to any Event, an amount equal to the interest that shall
accrue on the Notes over and above the stated interest at a rate of
0.25% per annum for the first 90 days immediately following the Event
Date, increasing by an additional 0.25% per annum at the beginning of
each subsequent 90-day period; provided, that the increase in the
stated interest shall not exceed 1.00% per annum in the aggregate.
7. Expenses of Initial and Company Registration.
All expenses (other than underwriting discounts and commissions) and the
fees and disbursements of one special counsel to the selling Holders incurred in
connection with registrations in which any Holders participate pursuant to
Sections 2, 3 or 11 hereof, including, without limitation, all registration,
filing and qualification fees, printing and accounting fees, and the fees and
disbursements of counsel for the Company shall be borne by the Company.
8. Underwriting Requirements.
The Company shall not be required under Sections 3 or 11 to include any of
the Holders' securities in an underwritten offering of the Company's securities
unless such Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by the Company, assuming usual and
customary underwriting terms. Notwithstanding any other provisions of this
Agreement, in the case of an underwritten offering in which Registrable
Securities are to be included pursuant to Section 3, if the managing underwriter
shall advise the Company in writing that the total number of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the amount of securities, other than securities to be sold
by the Company, that marketing factors allow, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the managing underwriter believes marketing
factors allow the securities so included to be reduced as follows: (i) all
securities which are not Registrable Securities, securities held by Laurus, or
its affiliates, or securities covered by the Registration Rights Agreement dated
August 15, 1997 (the "Registration Agreement") shall be excluded from the
offering to the extent limitation on the number of shares included in the
underwriting is required, and (ii) if further limitation on the number of shares
to be included in the underwriting is required, then the number of shares that
may be included in the underwriting held by Holders of Registrable Securities
shall be reduced pro rata based on the total number of securities held by such
persons; provided that, in no event shall the number of securities requested to
be registered by Holders of Registrable Securities be reduced below 20% of the
aggregate shares to be offered in the registration unless such Holders request
that securities constituting less than 20% of the
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aggregate shares to be offered in the registration be registered on such
Registration Statement, in which event, all such securities shall be included.
9. Indemnification.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, the partners, officers, agents, employees and
directors of each Holder, any underwriter (as defined in the Act) for
such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims,
damages or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act,
the 1934 Act or any state securities law; and the Company will
reimburse each such Holder, partner, officer, agent, employee or
director, underwriter or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this
Section 9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company, which consent shall not
be unreasonably withheld, nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by, or on
behalf of, any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder severally and not
jointly will indemnify and hold harmless the Company, each of its
officers, directors, agents or employees, each person, if any, who
controls the Company within the meaning of the Act, any underwriter
and any other Holder selling securities in such Registration Statement
or any of its partners, agents, employees, directors or officers or
any person who controls such Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any
such
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director, partner, agent, employee, officer, controlling person, or
underwriter, or other such Holder or director, officer, partner,
agent, employee or controlling person may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by, or on
behalf of, such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such partner,
agent, employee, director, officer, controlling person, underwriter or
other Holder, in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 9(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; and
provided, further, that each selling Holder shall be liable, under
this Section 9(b) for only that amount of losses, claims, damages and
liabilities as does not exceed the net proceeds to such selling Holder
as a result of such registration.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is
to be made against any indemnifying party under this Section 9,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying
party, if, in the opinion of counsel for the indemnifying party,
representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable period of time of the commencement of any such action shall
relieve such indemnifying party of any liability to the indemnified
party under this Section 9 to the extent materially prejudicial to its
ability to defend such action, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this
Section 9.
(d) If the indemnification provided for in this Section 9 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
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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 the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omissions.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions
in the underwriting agreement shall control.
10. Reports Under the Act.
With a view to making available to the Holders the benefits of SEC Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) take such action as is necessary to enable the Holders to utilize Form
S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon written request (i) a written statement by
the Company as to its compliance with the reporting requirements of
SEC Rule 144, the Act and the 1934 Act, or as to its qualification as
a registrant whose securities may be resold pursuant to Form S-3 (at
any time after it so qualifies), (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as
may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
11. Form S-3 Registration.
In case the Company shall receive from the Holders of at least twenty
percent (20%) in interest of the Registrable Securities, a written request or
requests that the Company effect a
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registration on Form S-3 and any related qualification or compliance with
respect to Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
reasonable qualifications and compliances as may be so requested and
as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within twenty (20)
days after receipt of written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 11:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, 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 securities (if any) at an
aggregate price to the public of less than $500,000; (iii) if the
Company shall furnish to the 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, including a majority of the
directors designated by FFG and Spinnaker, if any, such registration
would be materially detrimental to the Company, and the Board of
Directors of the Company, including a majority of the Directors
designated by the FFG and Spinnaker, if any, concludes as a result
that it is essential to defer the filling of such registration
statement at such time, then the Company shall have the right to defer
such filing of the registration statement for a period of not more
than sixty (60) days after receipt of the request of the Holder or
Holders under this Section 11; provided, however, that the Company
shall not utilize this right more than once in any 12-month period; or
(iv) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance.
12. Assignment of Registration Rights.
Spinnaker may assign its rights pursuant to this Agreement but only to a
permitted transferee pursuant to the terms and conditions of the BV Purchase
Documents and the Spinnaker Purchaser Documents.
13. Notices.
All notices and other communications called for or required by this
Agreement shall be in writing to the parties at their respective addresses
stated on the first page hereof or on the signature page to the Purchase
Agreement, or to such other address as a party may subsequently specify and
shall be deemed to have been received (i) upon delivery in person, (ii) upon the
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passage of seventy-two (72) hours following post by first class registered or
certified mail, return receipt requested, with postage prepaid, (iii) upon the
passage of twenty-four (24) hours following post by overnight receipted courier
service, or (iv) upon transmittal by confirmed telex or facsimile provided that
if sent by facsimile a copy of such notice shall be concurrently sent by
certified mail, return receipt requested and postage prepaid, with an indication
that the original was sent by facsimile and the date of its transmittal.
14. Amendments and Waivers.
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with the written consent of the Company, Briazz
Venture and Spinnaker.
15. Termination of Registration Rights.
The registration rights hereunder shall terminate on the earlier of (i) the
fifth anniversary of the initial issuance of the BV Warrant and Series D
Preferred Stock or (ii) such time as no Holder holds or has the right to receive
upon conversion or exercise any Registrable Securities; provided, however, that
the Company's obligations to maintain the effectiveness of Registration
Statements filed prior to the termination of this Agreement shall survive the
termination of this Agreement and such obligations shall instead terminate as
set forth in Section 4(c). The registration rights hereunder shall sooner
terminate with respect to any Holder upon the occurrence of any of the
following: (i) such Holder no longer holds or has the right to receive upon
conversion any Registrable Securities, or (ii) such Holder may resell all of
such Holder's Registrable Securities pursuant to Rule 144(k) under the Act.
16. Severability.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision(s) shall be excluded from this Agreement,
and the balance of this Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
17. Governing Law.
This Agreement, including all matters of construction, validity and
performance, shall be governed by and construed and enforced in accordance with
the laws of the State of Washington, as applied to contracts made, executed and
to be fully performed in such state by citizens of such state, without regard to
its choice of law and conflict of laws rules. The parties hereto agree that the
exclusive jurisdiction and venue for any action brought between the parties
under this Agreement shall be the state and federal courts sitting in King
County, Washington, and each of the parties hereby agrees and submits itself to
the exclusive jurisdiction and venue of such courts for such purpose.
18. Counterparts.
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This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
19. Entire Agreement.
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements with respect to the subject matter hereof.
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SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first hereinabove written.
BRIAZZ, INC.,
a Washington corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: CEO
------------------------------
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SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first hereinabove written.
PURCHASER:
Briazz Venture, L.L.C.,
an Illinois limited liability company
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Chief Financial Officer
------------------------------
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SEPARATE SIGNATURE PAGE
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first hereinabove written.
PURCHASER:
Spinnaker Investment Partners, L.P,
a Delaware limited partnership
By: Spinnaker Capital Partners, LLC
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Title: Manager
------------------------------
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