EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
____________, 2003, by and among BRIAZZ, INC. (the "Company"), and the persons
whose signatures appear on the signature pages to this Agreement (the
"Purchasers").
RECITALS
Pursuant to a Securities Purchase Agreement dated as of May 28, 2003,
as amended on _________, 2003 (as so amended, the "Purchase Agreement"), the
Purchasers purchased non-convertible promissory notes (the "Notes") and shares
of the Series F Preferred Stock (the "Preferred Stock") of the Company
convertible into shares of Common Stock of the Company.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions.
For purposes of this Agreement:
(a) 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;
(b) The term "Registrable Securities" means the Common Stock issuable
or issued upon conversion of the Preferred Stock (including Common Stock issued
pursuant to stock splits, stock dividends and similar distributions) and any
securities added pursuant to Section 14, excluding, however, any Registrable
Securities sold by a person in a transaction in which its rights under this
Agreement are not assigned;
(c) 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
convertible securities which are, Registrable Securities;
(d) The term "Registration Statement" shall mean any registration
statement under the Act that includes Registrable Securities;
(e) The term "Holder" means any Purchaser and any permitted transferees
under the terms of this Agreement or the Purchase Agreement;
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(f) 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;
(g) 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
(h) 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. Demand Registration.
If the Company shall receive, at any time after the date of this
Agreement, a written request (a "Demand") from the Holders of at least 25% of
the Registrable Securities then outstanding that the Company file a registration
statement (other than on Form S-3) under the Act covering the registration of at
least 25% of the Registrable Securities then outstanding, then the Company shall
give written notice of such request (the "Notice of Demand") to all Holders and
shall, subject to the limitations set forth below, use its best efforts to
effect as soon as practicable the registration under the Act of all Registrable
Securities that the Holders request to be registered in (a) the Demand or (b) a
written request given within twenty (20) days of the mailing of the Notice of
Demand by the Company. Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
2, a certificate signed by the Chief Executive Officer or other responsible
officer 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
Purchasers, 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 ninety (90) additional days; provided,
however, that the Company shall only be able to defer any Demand one (1) time in
any 24-month period. In addition, the Company shall not be required to file a
registration statement pursuant to this Section 2 if (a) 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
$300,000 or (b) if the Company has, within 180 days preceding the date of such
request, already effected a registration for the Holders pursuant to this
Section 2. The Company is obligated to effect only three registrations pursuant
to this Section 2.
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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 set forth below, all the
Registrable Securities then outstanding and specified in a written request or
requests made by Holders within fifteen (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) furnish to each Stockholders, prior to the filing thereof with the
Commission, a copy of any Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the prospectus included therein and
shall afford the Stockholders and its counsel, if any, a reasonable opportunity
within a reasonable time period to review and comment on copies of all such
documents (including a reasonable opportunity to review copies of any documents
to be incorporated by reference therein and all exhibits thereto) proposed to be
filed;
(b) 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;
(c) use its best efforts, subject to receipt of necessary information
from the selling Holders, to cause such Registration Statement to become
effective as promptly after filing as practicable;
(d) take such action as may be reasonably necessary so that: (A) the
Registration Statement and any amendment thereto and any prospectus forming part
thereof and any amendment or supplement thereto (and each report or other
document incorporated therein by reference) complies in all material respects
with the Act and the Exchange Act and the respective rules and regulations
thereunder, (B) the Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) any prospectus forming part of
the Registration Statement, and any amendment or supplement to such prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading
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(e) 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 the earlier
to occur of (i) 180 days after the effective date of the Registration Statement,
as adjusted pursuant to Section 5(c) below or (ii) such time as each Holder
named in the Registration Statement either (A) no longer holds or has the right
to receive any of the Registrable Securities registered therein or (B) has had
its rights under this Agreement terminated pursuant to Section 15 hereof;
(f) furnish, without charge, 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, prospectus 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;
provided, however, that (x) such one hundred eighty (180) day period shall be
extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (y) in the
case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such one hundred eighty
(180) day period shall be extended, if necessary, to keep the registration
statement effective until all such Registrable Securities are sold, provided
that Rule 415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis, and provided further, that applicable
rules under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment that (I) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of
information required to be included in (I) and (II) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in
the registration statement;
(g) 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;
(h) 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;
(i) 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;
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(j) 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 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, unless counsel
for the Company is of the reasonable opinion that such amendment or supplement
is not so required;
(k) 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;
(l) 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 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;
(m) 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;
(n) otherwise comply with all applicable rules and regulations of the
SEC;
(o) cause all the Registrable Securities covered by such Registration
Statement to be listed or quoted on any stock exchange or quotation system on
which the Company's Common Stock is listed or quoted, to the extent not already
then listed or quoted;
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(p) (i) furnish the Holders, at the Company's expense, on a timely
basis with certificates free of any restrictive legends representing ownership
of the Registrable Securities being sold in such denominations and registered in
such names as the Stockholders shall request and (ii) instruct the transfer
agent and registrar of the Registrable Securities to release any stop transfer
orders with respect to the Registrable Securities;
(q) 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;
(r) 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;
(s) 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; and
(t) cooperate with each selling Holder and each underwriter in
connection with the filing required to be made with NASD.
(u) use its reasonable best efforts to take all other steps
commercially reasonably necessary to effect the registration, offering and sale
of the Registrable Securities covered by a Registration Statement contemplated
hereby and enter into any other customary agreements and take such other actions
as are commercially reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities and the Company shall secure the
participation of its senior management for such purposes.
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;
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(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,
(i) for such time as may be reasonably necessary 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) if the Company reasonably 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)(i) 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. In the event that any Suspension Period
occurs, the effective period under Section 4(c)(i) 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. Expenses of Demand and Company Registration.
All expenses (other than underwriting discounts and commissions)
incurred in connection with registrations in which any Holders participate
pursuant to Sections 2, 3 or 12 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. In addition, the Company will pay the reasonable fees of one legal
counsel to the Holders in any such registration. Notwithstanding the foregoing,
in the event that a Holder or Holders withdraw a Demand for registration under
Section 2, the Company shall have no obligations to pay any of the expenses
incurred in connection with such registration unless the holders of a majority
of the then outstanding Registrable Securities agree in writing to forfeit the
right to one registration under Section 2; provided, however, that in the event
that a withdrawal of a registration by the Holders is based upon material
adverse information relating to the Company that is different from the
information known to the Holders who made the Demand at the time of the Demand
and the holders of a majority of the Registrable Securities held by such Holders
with respect to such registration elect not to proceed with such registration,
the Company shall be obligated for the expenses incurred in connection with such
registration to the extent the Company would have borne such expenses under this
Section 6 and such registration shall not be treated as a counted registration
for purposes of this Section 6 hereof.
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7. Underwriting Requirements.
The Company shall not be required under Sections 3 or 12 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) first,
all securities which are not Registrable Securities, securities covered by the
Securities Purchase Agreement with Laurus Master Fund, LTD (the "Laurus Purchase
Agreement") 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 second, the number of shares
that may be included in the underwriting held by selling Holders, parties to the
Laurus Purchase Agreement and parties to the Registration Agreement who propose
to participate in the registration shall be reduced pro rata based on the total
number of securities having registration rights under this Agreement, the Laurus
Purchase Agreement or the Registration Agreement by such persons; provided that,
in no event shall the number of securities requested to be registered by parties
to the Registration Agreement be reduced below 20% of the aggregate shares to be
offered in the registration unless such parties request that securities
constituting less than 20% of the aggregate shares to be offered in the
registration be registered, in which event, all such securities shall be
included.
8. Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
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
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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 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.
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(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 reasonable opinion of the indemnified 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 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:
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(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 qualify
the Company as a registrant whose securities may be resold pursuant to Form S-3;
(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. Assignment of Registration Rights.
The rights to cause the Company to register Registrable Securities
pursuant to this Agreement may be assigned only to a transferee receiving Common
Stock or securities convertible or exercisable into at least 1,000,000 shares of
the Common Stock of the Company from a Holder; and provided further, that such
rights may not be assigned in connection with a sale of securities pursuant to
registration under the Act or Rule 144 promulgated under the Act.
12. Form S-3 Registration.
In case the Company shall receive from the Holders of at least
twenty-five percent (25%) in interest of the Registrable Securities, a written
request or requests that the Company effect a 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 12: (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
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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
$300,000; (iii) if the Company shall furnish to the Holders a certificate signed
by the Chief Executive Officer, or other responsible officer, 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 Purchasers, 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 Purchasers, 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 ninety (90) days after receipt of the request of the Holder or Holders
under this Section 12; provided, however, that the Company shall not utilize
this right more than once in any 12-month period; (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; (v) if the Company has, within 180
days preceding the date of such request, already effected a registration for the
Holders pursuant to Section 2, 3 or 12 or (vi) if the Company has already
effected five registrations pursuant to this Section 12.
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 signature page hereto, 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 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 and
Holders representing at least a majority of the Registrable Securities then
outstanding; provided, however, that any such amendment or waiver that is not
equally applicable to all such Holders, or discriminates in a material way
against any Holder, shall require the consent of the affected Holder.
Notwithstanding the foregoing, each party to the Laurus Purchase Agreement or
the Registration Agreement still possessing registration rights under the Laurus
Purchase Agreement or the Registration Agreement may be added as a party to this
Agreement by adding a signature page executed by such person, in which case such
person shall be deemed a Holder hereunder and such person's Registrable
Securities under the Laurus Purchase Agreement or the Registration Agreement
shall be deemed Registrable Securities hereunder.
12
15. Termination of Registration Rights.
The registration rights hereunder shall terminate on the earlier of (i)
the tenth anniversary of the issuance of the Notes or (ii) such time as no
Holder holds or has the right to receive upon conversion 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 may resell all of such Holder's
Registrable Securities pursuant to Rule 144(k) under the Act, or (ii) such
Holder may resell all of such Holder's Registrable Securities within a
three-month period pursuant to Rule 144 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 New York, 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 the
Borough of Manhattan of the City of New York, and each of the parties hereby
agrees and submits itself to the exclusive jurisdiction and venue of such courts
for such purpose.
18. Counterparts.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
BRIAZZ, INC.
By:
--------------------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer, Chief
Financial Officer, Chairman and
Secretary
Address: 0000 0xx Xxxxxx X.
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INVESTOR:
DEUTSCHE BANK LONDON AG
acting through
DB ADVISORS, LLC
By:__________________________________
Print Name:__________________________
Print Title:_________________________
Address:_______________________
_______________________
_______________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INVESTOR:
BRIAZZ VENTURE, L.L.C.
By:__________________________________
Print Name:__________________________
Print Title:_________________________
Address: 000 Xxxxx Xxxxxxxx, Xxxxx 0-X
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INVESTOR:
Spinnaker Investment Partners, L.P.
By:__________________________________
Print Name:__________________________
Print Title:_________________________
Address: 00 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
INVESTOR:
DELAFIELD XXXXXXXXX, INC.
By:__________________________________
Print Name:__________________________
Print Title:_________________________
Address: 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx. Xxxxxxxxxx 00000
Attn: XX Xxxxxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
ADDITIONAL HOLDER PURSUANT TO
SECTION 14 OF AGREEMENT:
LAURUS MASTER FUND, LTD.
By:__________________________________
Print Name:__________________________
Print
Title:___________________________
Address: c/o Ironshore Corporate Services Ltd.
X.X. Xxx 0000 G.T., Queensgate House,
South Church Street
Grand Cayman, Cayman Islands
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
