FIRST AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.23
FIRST AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
This
First Amendment to the Registration Rights Agreement(this
“Amendment”)is made and
entered into effective as of February 13, 2017, by and among Noble
Roman’s, Inc., an Indiana corporation (the
“Company”),
and the investors signatory hereto (the “Investors”).
Recitals
A. The Company, the
Investors and certain other parties entered into that certain
Registration Rights Agreement dated as of October 13, 2016 (the
“Registration Rights
Agreement”). Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in
the Registration Rights Agreement. The Registration Rights
Agreement varied from the terms contemplated by the subscription
agreements executed by the Investors and certain other investor in
a private placement of securities that took place in the
4th
Quarter of 2016 and 1stQuarter of 2017 (the
“Subscription
Agreements”).
B. The Company and the
Investors have determined that the Registration Rights Agreement
did not accurately reflect the parties’ agreement with
respect to certain matters, and the Company and the Investors wish
to amend the Registration Rights Agreement to conform its terms to
the recitals set forth in the Subscription
Agreements..
C. Section 6(d) of the
Registration Rights Agreement provides that the Registration Rights
Agreement may be amended in a written instrument signed by the
Company and the Holders of no less than a majority of the then
outstanding Registrable Securities (such Holders, the
“Requisite
Investors”).
D. The Investors
executing this Amendment constitute the Requisite
Investors.
Agreement
NOW,
THEREFORE, the Company and the undersigned Investors hereby amend
the Registration Rights Agreement as follows:
1. The definition of
“Effectiveness Date” in Section 1 of the Registration
Rights Agreement is hereby deleted in its entirety and the
following inserted in its place:
“Effectiveness Date”
means: (a) with respect to the initial Registration Statement
required to be filed to cover the resale by the Holders of the
Registrable Securities, the 60th day following the date such
Registration Statement is filed with the Commission, and (b) with
respect to any additional Registration Statements that may be
required pursuant to Sections 2(a) and (b) hereof, the 90th day
following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required under such Sections. “Effectiveness Date” shall
also have the meaning specified in Section 2(b).
2. The definition of
“Filing Date” in Section 1 of the Registration Rights
Agreement is hereby deleted in its entirety and the following
inserted in its place:
“Filing Date” means: (a)
with respect to the initial Registration Statement required to be
filed to cover the resale by the Holders of the Registrable
Securities, the 120th day following the final Closing Date, and (b)
with respect to any additional Registration Statements that may be
required pursuant to Sections 2(a) and (b) hereof, the 30th day
following the date on which the Company first knows, or reasonably
should have known, that such additional Registration Statement is
required under such Sections.
3. Section 2(a) of the
Registration Rights Agreement is hereby deleted in its entirety and
the following inserted in its place:
(a) Initial
Registration Statements. On or prior to each Filing Date, the
Company shall prepare and file with the Commission a Registration
Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415; provided, however, that the Company in its sole discretion may
elect to extend the Filing Date applicable to the initial
Registration Statement by up to an additional 30 days. The
Registration Statement shall be on Form S-1, or another appropriate
form for such purpose, and shall contain (except if otherwise
required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the “Plan of
Distribution” attached hereto as Annex A. The Company shall use
best efforts to cause the Registration Statement to be declared
effective under the Securities Act as soon as possible but, in any
event, no later than the Effectiveness Date, and shall use its best
efforts to keep the Registration Statement continuously effective
under the Securities Act until the date that is two years after the
date that the Registration Statement is declared effective by the
Commission or such earlier date when all Registrable Securities
covered by the Registration Statement have been sold or may be sold
pursuant to Rule 144(b)(i) as determined in the reasonable opinion
of the Company’s counsel (the “Effectiveness Period”).
It is agreed and understood that the Company shall, from time to
time, be obligated to file an additional Registration Statement to
cover any Registrable Securities that are not registered for resale
pursuant to a pre-existing Registration Statement.
4. The following new
Section 2(d) is hereby added to the Registration Rights
Agreement:
(d) Registration
Limitations. Notwithstanding anything in this Agreement to the
contrary, the Company shall not be required to register any
Registrable Securities, which, in the reasonable opinion of the
Company’s counsel, may be sold pursuant to the exemption from
registration provided by Rule144(b)(1).
5. Except as amended
by this Amendment, the Registration Rights Agreement remains in
full force and effect.
6. All questions
concerning the construction, validity, enforcement and
interpretation of this Amendment shall be governed by and construed
and enforced in accordance with the internal laws of the State of
Indiana, without regard to the principles of conflicts of law
thereof.
7. This Amendment 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. Facsimile and .pdf signatures shall be
valid and treated as originals.
[The remainder of this page is left blank intentionally. Signature
Pages Follow.]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first written above.
COMPANY:
NOBLE
ROMAN’S, INC.
Name:
Xxxx X. Xxxxxx
Title: Executive
Chairman
Signature Page to
First Amendment to the Registration Rights
Agreement
IN
WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first written above.
INVESTOR:
By:
Name:
Title:
Signature Page to
First Amendment to the Registration Rights
Agreement
