REGISTRATION RIGHTS AGREEMENT
Exhibit
10.6
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”) is entered into as of the 15th day of December, 2006, by and among:
Restaurant Acquisition Partners, Inc., a Delaware corporation (the “Company”);
and each of Xxxxxxxxxxx X. Xxxxxx, Xxxxx X. Xxxx III and Xxxx X. Xxxxx (each,
an
“Investor” and collectively, the “Investors”).
WHEREAS,
the
Investors currently hold all of the issued and outstanding securities of the
Company;
WHEREAS,
the
Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of shares of Common
Stock held by them;
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.
“Underwriter
Demanding Holder”
is
a
Demanding Holder as defined in the Underwriter Registration Rights
Agreement.
“Underwriter
Demand Registration”
is
a
demand for registration of securities set forth in the Underwriter Registration
Rights Agreement.
“Underwriter
Registration Rights Agreement”
is
that
certain Registration Rights Agreement between the Company and Capital Growth
Financial, LLC to be entered into in connection with the Company’s initial
public offering.
“Indemnified
Party”
is
defined in Section 4.3.
“Indemnifying
Party”
is
defined in Section 4.3.
“Investor”
is
defined in the preamble to this Agreement.
“Investor
Indemnified Party”
is
defined in Section 4.1.
“Maximum
Number of Shares”
is
defined in Section 2.1.4.
“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 and Warrants owned or held by Investors.
Registrable Securities include any warrants, 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,
and shares of Common Stock issuable upon exercise of the Warrants (“Warrant
Shares”).
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 and
subsequent public distribution of them shall not require registration under
the
Securities Act; (c) such securities shall have ceased to be outstanding or
(d)
the Registrable Securities are salable under Rule 144(k).
“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).
“Release
Date”
means
(1) the date on which shares of Common Stock are disbursed from escrow pursuant
to Section 3 of that certain Stock Escrow Agreement to be entered into by and
among the parties hereto and Continental Stock Transfer & Trust Company and
(2) in the case of the Warrants and the Warrant Shares, 30 days after the
Company consummates a business combination.
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“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 and from time to time
on
or after the applicable Release Date, the holders of at least 50% of the then
Registrable Securities held by the Investors or the transferees of the
Investors, may make a written demand 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 the Underwriters party to the Underwriter Registration Rights
Agreement (the “IPO Underwriter”) (so long as said IPO Underwriter shall hold
Registrable Securities as defined in the Underwriter Registration Rights
Agreement) 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. An election by an IPO Underwriter to become a Demanding Holder
hereunder shall be deemed an exercise of its demand right pursuant to the
Underwriter Registration Rights Agreement. 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 an
aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect
of
Registrable Securities.
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.
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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
written contractual piggy-back registration rights held by other shareholders
of
the Company who desire to sell, 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 (pro rata in accordance with the number of shares of Registrable
Securities which such Demanding Holders have requested be included in such
registration, regardless of the number of shares held by such Demanding 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 securities as to which an IPO Underwriter piggy-back
registration demand has been made under Section 2.2 of the IPO Underwriter
Registration Rights Agreement 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 or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Number of Shares; (iv) fourth, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (i), (ii) and (iii), 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) fifth, to the extent that the
Maximum Number of Shares have not been reached under the foregoing clauses
(i),
(ii), (iii) and (iv), the shares of Common Stock that other shareholders desire
to sell that can be sold without exceeding the Maximum Number of Shares to
the
extent that the Company, in its sole discretion, wishes to permit such sales
pursuant to this clause (v).
2.1.5 WITHDRAWAL
.
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.
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2.2 PIGGY-BACK
REGISTRATION.
2.2.1 PIGGY-BACK
RIGHTS. If at any time on or after the Release Date 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.
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 the written contractual
piggy-back registration rights of other shareholders of the Company, 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 Registrable Securities as to which registration has been
requested under this Section 2.2 and the securities as to which piggy-back
registration has been requested under Section 2.2 of the Underwriter
Registration Rights Agreement (pro rata in accordance with the number of shares
of Registrable Securities and 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;
and
(c) to the extent that the Maximum Number of Shares has not been reached under
the foregoing clauses (A) and (B), the shares of Common Stock as to which
registration has been requested pursuant to written contractual piggy-back
registration rights of other security holders (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; and (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (A)
and (B), the Registrable Securities as to which registration has been requested
under this Section 2.2 and the securities as to which piggy-back registration
has been requested under Section 2.2 of the Underwriter Registration Rights
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); and (D) fourth, 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, if any, as to which registration has been requested pursuant
to
written contractual piggy-back registration rights which other shareholders
desire to sell 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:
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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, 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.
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 twelve 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, and the Company shall not file
any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
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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.
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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.
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 necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such
Registration Statement.
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, 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) National
Association of Securities Dealers, Inc. 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); (viii) the fees and expenses of any special experts retained
by
the Company in connection with such registration and (ix) the fees and expenses
of one legal counsel selected by the holders of a majority-in-interest of the
Registrable Securities included in 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 each 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 an 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
OTHER REGISTRATION RIGHTS. The Company represents and warrants that no
person, other than a holder of the Registrable Securities and the IPO
Underwriter, has any right to require the Company to register any shares of
the
Company’s capital stock for sale or to include shares of the Company’s capital
stock in any registration filed by the Company for the sale of shares of capital
stock for its own account or for the account of any other person.
6.2
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
6.2.
6.3
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.
13
To
the Company:
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
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
an Investor, to:
Xxxxxxxxxxx
X. Xxxxxx
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Xxxx
X.
Xxxxx
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Xxxxx
X.
Xxxx III
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
To
Capital Growth Financial, LLC:
Capital
Growth Financial, LLC
000
XX
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxx X. Xxxxxx, Chief Executive Officer and Chairman of the Board
14
6.4
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.
6.5
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.
6.6
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.
6.7
MODIFICATIONS AND AMENDMENTS. No amendment, modification or termination
of this Agreement shall be binding upon any party unless executed in writing
by
such party.
6.8
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.
6.9
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 breacch 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.
6.10
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 Investor 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.
15
6.11
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.
6.12
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 Investor in the negotiation,
administration, performance or enforcement hereof.
[Remainder
of Page Intentionally Left Blank.]
16
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: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
|
Name:
Xxxxxxxxxxx X. Xxxxxx
|
||
|
Title:
Chief Executive Officer and
President
|
||
|
INITIAL
STOCKHOLDERS:
|
||
| |
|
|
|
/s/
Xxxxxxxxxxx X.
Xxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxx
|
||
|
/s/
Xxxxx X. Xxxx
III
|
||
|
Xxxxx
X. Xxxx III
|
||
|
/s/
Xxxx X.
Xxxxx
|
||
|
Xxxx
X. Xxxxx
|
||
[Signature
Page to Registration Rights Agreement with Insiders]
