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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
AND
FRESH CHOICE, INC.
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TABLE OF CONTENTS
Page
ARTICLE 1
REGISTRATION RIGHTS
Section 1.1 Certain Definitions.................................................................. 1
Section 1.2 Demand Registration Rights........................................................... 3
Section 1.3 Company Registration................................................................. 6
Section 1.4 Expenses of Registration............................................................. 8
Section 1.5 Registration Procedures.............................................................. 9
Section 1.6 Indemnification...................................................................... 11
Section 1.7 Information by Holder................................................................ 14
Section 1.8 Limitations on Subsequent Registration Rights........................................ 14
Section 1.9 Rule 144 Reporting................................................................... 14
Section 1.10 Transfer or Assignment of Registration Rights........................................ 15
Section 1.11 "Market Stand-Off" Agreement......................................................... 15
Section 1.12 Allocation of Registration Opportunities............................................. 16
Section 1.13 Termination of Registration Rights................................................... 16
ARTICLE 2
MISCELLANEOUS
Section 2.1 Governing Law........................................................................ 17
Section 2.2 Successors and Assigns............................................................... 17
Section 2.3 Entire Agreement; Amendment; Waiver.................................................. 18
Section 2.4 Notices, Etc......................................................................... 18
Section 2.5 Delays or Omissions.................................................................. 18
Section 2.6 Rights; Separability................................................................. 18
Section 2.7 Information Confidential............................................................. 19
Section 2.8 Titles and Subtitles................................................................. 19
Section 2.9 Counterparts......................................................................... 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
the 13th day of September, 1996, and is being entered into by and between
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Stockholder") and FRESH CHOICE, INC., a Delaware corporation
(the "Company").
RECITALS
This is the Registration Rights Agreement referred to in that certain
Preferred Stock Purchase Agreement (herein so called) dated as of April 26,
1996, by and between the Company and the Stockholder, and is being entered
pursuant to the provisions thereof.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants and agreements set forth herein and in
the Preferred Stock Purchase Agreement, and intending to be legally bound, the
paries hereto hereby agree as follows:
ARTICLE 1
REGISTRATION RIGHTS
SECTION 1.1 CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
meanings set forth below:
(A) CLOSING. "Closing" shall mean the Closing under
the Preferred Stock Purchase Agreement.
(B) COMMISSION. "Commission" shall mean the
Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
(C) EXCHANGE ACT. "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, or any similar
successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to
time.
(D) HOLDER. "Holder" shall mean any holder of Shares
or Registrable Securities and any holder of Registrable
Securities to whom the registration rights conferred by this
Agreement have been transferred in compliance with Section
1.10 hereof.
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(E) INITIATING HOLDERS. "Initiating Holders" shall
mean any Holder or Holders who in the aggregate hold not less
than fifty percent (50%) of the Registrable Securities, or who
in the aggregate have the right to acquire fifty percent (50%)
of the Registrable Securities upon conversion of the Shares.
It shall not be necessary that a Holder convert the Shares
into Registrable Securities to be an "Initiating Holder."
(F) OTHER STOCKHOLDERS. "Other Stockholders" shall
mean persons other than Holders who, by virtue of agreements
with the Company, are entitled to include their securities in
certain registrations hereunder.
(G) REGISTRABLE SECURITIES. "Registrable Securities"
shall mean (i) shares of Common Stock issued or issuable
pursuant to the conversion of the Shares and (ii) any Common
Stock issued as a dividend or other distribution with respect
to or in exchange for or in replacement of the shares
referenced in (i) above; provided, however, that Registrable
Securities shall not include any shares of Common Stock which
have previously been registered or which have been sold to the
public either pursuant to a registration statement or Rule
144, or which have been sold in a private transaction in which
the transferor's rights under this Agreement are not assigned.
(H) REGISTER, REGISTERED AND REGISTRATION. The terms
"register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or
ordering of the effectiveness of such registration statement.
(I) REGISTRATION EXPENSES. "Registration Expenses"
shall mean all expenses incurred in effecting any registration
pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for
the Company, blue sky fees and expenses, and expenses of any
regular or special audits incident to or required by any such
registration, but shall not include Selling Expenses, fees and
disbursements of counsel for the Holders and the compensation
of regular employees of the Company, which shall be paid in
any event by the Company.
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(J) RULE 144. "Rule 144" shall mean Rule 144 as
promulgated by the Commission under the Securities Act, as
such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
(K) RULE 145. "Rule 145" shall mean Rule 145 as
promulgated by the Commission under the Securities Act, as
such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
(L) SECURITIES ACT. "Securities Act" shall mean the
Securities Act of 1933, as amended, or any similar successor
federal statute and the rules and regulations thereunder, all
as the same shall be in effect from time to time.
(M) SELLING EXPENSES. "Selling Expenses" shall mean
all underwriting discounts, selling commissions and stock
transfer taxes applicable to the sale of Registrable
Securities and fees and disbursements of counsel for any
Holder (other than the fees and disbursements of counsel
included in Registration Expenses).
(N) SHARES. "Shares" shall mean, collectively, the
Company's Series A Voting Participating Convertible Preferred
Stock, par value $0.001 per share, Series B Non-Voting
Participating Convertible Preferred Stock, par value $0.001
per share, and the Company's Series C Non-Voting Participating
Convertible Preferred Stock, par value $0.001 per share.
SECTION 1.2 DEMAND REGISTRATION RIGHTS.
(A) REQUEST FOR REGISTRATION. If the Company shall
receive from Initiating Holders at any time or from time to
time after the date hereof a written request that the Company
effect any registration with respect to all or a part of the
Registrable Securities the Company shall:
(i) promptly give written notice of the
proposed registration to all other Holders; and
(ii) as soon as practicable, use its best
efforts to effect such registration (including,
without limitation, filing post-effective amendments,
appropriate qualifications under
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applicable blue sky or other state securities laws,
and appropriate compliance with the Securities Act)
and as would permit or facilitate the sale and
distribution of all or such portion of such
Registrable Securities as are specified in such
request, together with all or such portion of the
Registrable Securities of any Holder or Holders
joining in such request as are specified in a written
request received by the Company within twenty (20)
days after such written notice from the Company is
mailed or delivered.
The Company shall not be obligated to
effect, or to take any action to effect, any such
registration pursuant to this Section 1.2:
(A) In any particular jurisdiction
in which the Company would be required to
execute a general consent to service of
process in effecting such registration,
qualification, or compliance, unless the
Company is already subject to service in
such jurisdiction and except as may be
required by the Securities Act;
(B) After the Company has initiated
two such registrations pursuant to this
Section 1.2(a) (counting for these purposes
only registrations which have been declared
or ordered effective and pursuant to which
securities have been sold and registrations
which have been withdrawn by the Holders as
to which the Holders have not elected to
bear the Registration Expenses pursuant to
Section 1.4 hereof and would, absent such
election, have been required to bear such
expenses); or
(C) During the period starting with
the date sixty (60) days prior to the
Company's good faith estimate of the date of
filing of, and ending on a date one hundred
eighty (180) days after the effective date
of, a Company-initiated registration;
provided that the Company is actively
employing in good faith all reasonable
efforts to cause such registration statement
to become effective.
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(B) FILING OF REGISTRATION STATEMENT. Subject to the
foregoing clauses (A) through (C), the Company shall file a
registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after
receipt of the request or requests of the Initiating Holders;
provided, however, that if (i) in the good faith judgment of
the Board of Directors of the Company, such registration would
be seriously detrimental to the Company and the Board of
Directors of the Company concludes, as a result, that it is
essential to defer the filing of such registration statement
at such time, and (ii) the Company shall furnish to such
Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to
the Company for such registration statement to be filed in the
near future and that it is, therefore, essential to defer the
filing of such registration statement, then the Company shall
have the right to defer such filing (except as provided in
clause (C) above) for a period of not more than ninety (90)
days after receipt of the request of the Initiating Holders,
and, provided further, that the Company shall not defer its
obligation in this manner more than once in any twelve-month
period.
The registration statement filed pursuant to the
request of the Initiating Holders may, subject to the
provisions of Sections 1.2(b) and 1.12 hereof, include other
securities of the Company, with respect to which registration
rights have been granted, and may include securities of the
Company being sold for the account of the Company.
(C) UNDERWRITING. If the registration of which the
Initiating Holders give notice is for a registered public
offering involving an underwriting, the Initiating Holders
shall so advise the Company as a part of the written request
given pursuant to Section 1.2(a). In such event, the right of
any Holder to registration pursuant to Section 1.2 shall be
conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and
such Holder with respect to such participation and inclusion)
to the extent provided herein. A Holder may elect to include in
such underwriting all or a part of the Registrable Securities
held by such Holder.
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(D) PROCEDURES. If the Company shall request
inclusion in any registration pursuant to Section 1.2 of
securities being sold for its own account, or if other persons
shall request inclusion in any registration pursuant to
Section 1.2, the Initiating Holders shall, on behalf of all
Holders, offer to include such securities in the registration,
and may condition such offer on their acceptance of the
further applicable provisions of this Article 1 (including
Section 1.2). If such registration be an underwritten
firm-commitment offering, the Company shall (together with all
Holders and other persons proposing to distribute their
securities through such underwriting) enter into an
underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for
such underwriting by a majority in interest of the Initiating
Holders, which underwriters are reasonably acceptable to the
Company. Notwithstanding any other provision of this Section
1.2, if the representative of the underwriters advises the
Initiating Holders in writing that marketing factors require a
limitation on the number of shares to be underwritten, the
number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 1.12
hereof. If a person who has requested inclusion in such
registration as provided above does not agree to the terms of
any such underwriting, such person shall be excluded therefrom
by written notice from the Company, the underwriter or the
Initiating Holders. The securities so excluded shall also be
withdrawn from registration. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting
shall also be withdrawn from such registration. If shares are
so withdrawn from the registration and if the number of shares
to be included in such registration was previously reduced as
a result of marketing factors pursuant to this Section 1.2(d),
then the Company shall offer to all holders who have retained
rights to include securities in the registration the right to
include additional securities in the registration in an
aggregate amount equal to the number of shares so withdrawn,
with such shares to be allocated among such holders requesting
additional inclusion in accordance with Section 1.12.
SECTION 1.3 COMPANY REGISTRATION.
(A) NOTICE OF REGISTRATION. If the Company shall, at
any time or from time to time after the date hereof, determine
to register any of its securities either for its own account
or the
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account of a security holder or holders exercising their
respective demand registration rights (other than pursuant to
Section 1.2 hereof), other than a registration relating solely
to employee benefit plans, or a registration relating to a
corporate reorganization or other transaction under Rule 145,
or a registration on any registration form that does not
permit secondary sales, the Company shall:
(i) promptly give to each Holder written
notice thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under
blue sky laws or other compliance), except as set
forth in Section 1.3(b) below, and in any
underwriting involved therein, all the Registrable
Securities specified in a written request or
requests, made by any Holder and received by the
Company within ten (10) days after the written notice
from the Company described in clause (i) above is
mailed or delivered by the Company. Such written
request may specify all or a part of a Holder's
Registrable Securities.
(B) UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering
involving an underwriting, the Company shall so advise the
Holders as a part of the written notice given pursuant to
Section 1.3(a)(i). In such event, the right of any Holder to
registration pursuant to this Section 1.3 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 Holders
proposing to distribute their securities through such
underwriting shall (together with the Company and the other
holders of securities of the Company with registration rights
to participate therein distributing their securities through
such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected by the Company.
Notwithstanding any other provision of this Section
1.3, if the representative of the underwriters advises the
Company in writing that marketing factors require a limitation
on the number of shares to be underwritten, the representative
may (subject to the
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limitations set forth below) exclude all Registrable
Securities from, or limit the number of Registrable Securities
to be included in, the registration and underwriting. The
Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being
sold for its own account and thereafter as set forth in
Section 1.12. If any person does not agree to the terms of any
such underwriting, such person shall be excluded therefrom by
written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
If shares are so withdrawn from the registration or
if the number of shares of Registrable Securities to be
included in such registration was previously reduced as a
result of marketing factors, the Company shall then offer to
all persons who have retained the right to include securities
in the registration the right to include additional securities
in the registration in an aggregate amount equal to the number
of shares so withdrawn, with such shares to be allocated among
the persons requesting additional inclusion in accordance with
Section 1.12 hereof.
SECTION 1.4 EXPENSES OF REGISTRATION.
All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Sections 1.3 hereof, and
the first two registrations pursuant to Section 1.2 hereof and reasonable fees
of one counsel for the selling stockholders in the case of registrations
pursuant to Section 1.2 shall be borne by the Company; provided, however, that
if the Holders bear the Registration Expenses for any registration proceeding
begun pursuant to Section 1.2 and subsequently withdrawn by the Holders
registering shares therein, such registration proceeding shall not be counted as
a requested registration pursuant to Section 1.2 hereof. Furthermore, in the
event that a withdrawal by the Holders is based upon material adverse
information relating to the Company that is different from the information known
or available (upon request from the Company or otherwise) to the Holders
requesting registration at the time of their request for registration under
Section 1.2, such registration shall not be treated as a counted registration
for purposes of Section 1.2 hereof, even though the Holders do not bear the
Registration Expenses for such registration. All Selling Expenses relating to
securities so registered shall be borne by the Holders of such securities pro
rata on the basis of the number of shares of securities so registered on their
behalf, as shall any other
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expenses in connection with the registration required to be borne by the Holders
of such securities.
SECTION 1.5 REGISTRATION PROCEDURES.
In the case of each registration effected by the Company
pursuant to Article 1, the Company will keep each Holder advised in writing as
to the initiation of each registration and as to the completion thereof. At its
expense, the Company will use its best efforts to:
(A) Keep such registration effective for a period of
one hundred twenty (120) days or until the Holder or Holders
have completed the distribution described in the registration
statement relating thereto, whichever first occurs; provided,
however, that (i) such 120-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; or, 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
120-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable
Securities are sold, provided that Rule 415 permits an
offering on a continuous or delayed basis, and provided
further that applicable rules under the Securities 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;
(B) Prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such registration statement;
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(C) Furnish such number of prospectuses and other
documents thereto, including any amendment of or supplement to
the prospectus, as a Holder from time to time may reasonably
request;
(D) Notify each seller of Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result
of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or incomplete in the light of the circumstances
then existing, and at the request of any such seller, prepare
and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus shall not
include 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 or
incomplete in the light of the circumstances then existing;
(E) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange or
market on which similar securities issued by the Company are
then listed or admitted to trading;
(F) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such
registration statement and a CUSIP number for all such
Registrable Securities, in each case not later than the
effective date of such registration;
(G) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen months,
beginning with the first month after the effective date of the
Registration Statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act; and
(H) In connection with any underwritten offering
pursuant to a registration statement filed pursuant to
Section 1.2
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hereof, the Company will enter into an underwriting agreement
in form reasonably necessary to effect the offer and sale of
Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if
the underwriter so requests the underwriting agreement will
contain customary contribution provisions.
SECTION 1.6 INDEMNIFICATION.
(A) The Company will indemnify each Holder, each of
its officers, directors and partners, legal counsel, and
accountants and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to
which registration, qualification, or compliance has been
effected pursuant to this Article 1, and each underwriter, if
any, and each person who controls within the meaning of
Section 15 of the Securities Act any underwriter, against all
expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any
prospectus, offering circular, or other document (including
any related registration statement, notification, or the like)
incident to any such registration, qualification, or
compliance, or based on any 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
any violation by the Company of the Securities Act or any rule
or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in
connection with any such registration, qualification, or
compliance, and will reimburse each such Holder, each of its
officers, directors, partners, legal counsel, and accountants
and each person controlling such Holder, each such
underwriter, and each person who controls any such
underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case
to the extent that any such claim, loss, damage, liability, or
expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the
Company by such Holder or underwriter and stated to be
specifically for use therein. It is agreed that the indemnity
agreement contained in this Section 1.6(a) shall not apply to
amounts paid in settlement of any
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such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company
(which consent has not been unreasonably withheld).
(B) Each Holder will, if Registrable Securities held
by such Holder are included in the securities as to which such
registration, qualification, or compliance is being effected,
indemnify the Company, each of its directors, officers,
partners, legal counsel, and accountants and each underwriter,
if any, of the Company's securities covered by such a
registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the
Securities Act, each other such Holder and Other Stockholder,
and each of their officers, directors, and partners, and each
person controlling such Holder or Other Stockholder, against
all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus,
offering circular, or other document, or any omission (or
alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Company and such
Holders, Other Stockholders, directors, officers, partners,
legal counsel, and accountants, persons, underwriters, or
control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case
to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance
upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for
use therein; provided, however, that the obligations of such
Holder hereunder shall not apply to amounts paid in settlement
of my such claims, losses, damages, or liabilities (or actions
in respect thereof) if such settlement is effected without the
consent of such Holder (which consent shall not be
unreasonably withheld); and provided that in no event shall
any indemnity under this Section 1.6 exceed the gross proceeds
from the offering received by such Holder.
(C) Each party entitled to indemnification under this
Section 1.6 (the "Indemnified Party") shall give notice to the
party
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required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such
claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the
defense of such claim or any litigation resulting therefrom,
shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article 1, to
the extent such failure is not prejudicial. No Indemnifying
Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.
Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim
and litigation resulting therefrom.
(D) If the indemnification provided for in this
Section 1.6 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 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
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parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or
omission.
(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.
SECTION 1.7 INFORMATION BY HOLDER.
Each Holder of Registrable Securities shall furnish to the
Company such information regarding such Holder and the distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification, or
compliance referred to in this Article 1.
SECTION 1.8 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company shall
not, without the prior written consent of a majority in interest of the Holders,
enter into any agreement with any holder or prospective holder of any securities
of the Company giving such holder or prospective holder any registration rights
the terms of which are more favorable than the registration rights granted to
the Holders hereunder.
SECTION 1.9 RULE 144 REPORTING.
With a view to making available the benefits of certain rules
and regulations of the Commission that may permit the sale of the restricted
securities to the public without registration, the Company agrees to use its
best efforts to:
(A) Make and keep public information regarding the
Company available as, those terms are understood and defined
in Rule 144, at all times from and after the date hereof;
(B) File with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act;
(C) So long as a Holder owns any restricted
securities, furnish to the Holder forthwith upon written
request a written statement by the Company as to its
compliance with the reporting
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requirements of Rule 144, and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so
filed as a Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to
sell any such securities without registration.
SECTION 1.10 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause the Company to register securities granted
to a Holder by the Company under this Article 1 may be transferred or assigned
by a Holder only to a transferee or assignee of not less than 250,000 shares of
Registrable Securities (as presently constituted and subject to subsequent
adjustments for stock splits, stock dividends, reverse stock splits, and the
like), provided that the Company is given written notice at the time of or
within a reasonable time after said transfer or assignment, stating the name and
address of the transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned,
and, provided further, that the transferee or assignee of such rights assumes in
writing the obligations of such Holder under this Article 1.
SECTION 1.11 "MARKET STAND-OFF" AGREEMENT.
If requested by the Company and an underwriter of Common Stock
(or other securities) of the Company, a Stockholder shall not sell or otherwise
transfer or dispose of any Common Stock (or other securities) of the Company
held by such Stockholder (other than those included in the registration) during
the one hundred eighty (180) day period following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that:
(A) such agreement shall only apply to the first such
registration statement of the Company, including securities to
be sold on its behalf to the public in an underwritten
offering, filed after the date hereof; and
(B) all officers and directors of the Company and
holders of at least one percent (1%) of the Company's voting
securities are bound by and have entered into similar
agreements other than holders who have purchased shares in the
public markets and are affiliates of the Company based solely
on the size of their holdings.
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The obligations described in this Section 1.11 shall not
apply to a registration relating solely to employee benefit plans on Form S-1 or
Form S-8 or similar forms that may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form S-4 or
similar forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
SECTION 1.12 ALLOCATION OF REGISTRATION OPPORTUNITIES.
In any circumstance in which all of the Registrable Securities
and other shares of Common Stock of the Company (including shares of Common
Stock issued or issuable upon conversion of shares of any currently unissued
series of Preferred Stock of the Company) with registration rights (the "Other
Shares") requested to be included in a registration on behalf of the Holders or
other selling stockholders cannot be so included as a result of limitations of
the aggregate number of shares of Registrable Securities and Other Shares that
may be so included, the number of shares of Registrable Securities and Other
Shares that may be so included shall be allocated among the Holders and other
selling stockholders requesting inclusion of shares pro rata on the basis of the
number of shares of Registrable Securities and Other Shares that would be held
by such Holders and other selling stockholders, assuming conversion; provided,
however, that such allocation shall not operate to reduce the aggregate number
of Registrable Securities and Other Shares to be included in such registration.
If any Holder or other selling stockholder does not request inclusion of the
maximum number of shares of Registrable Securities and Other Shares allocated to
such Holder or other stockholder pursuant to the above-described procedure, the
remaining portion of such Holder's or other stockholder's allocation shall be
reallocated among those requesting Holders and other selling stockholders whose
allocations did not satisfy their requests pro rata on the basis of the number
of shares of Registrable Securities and Other Shares which would be held by such
Holders and other selling stockholders, assuming conversion, and this procedure
shall be repeated until all of the shares of Registrable Securities and Other
Shares which may be included in the registration on behalf of the Holders and
other selling stockholders have been so allocated. The Company shall not limit
the number of Registrable Securities to be included in a registration pursuant
to this Agreement in order to include shares held by stockholders with no
registration rights or to include any shares of stock issued to employees,
officers, directors, or consultants pursuant to the Company's Second Amended and
Restated 1988 Stock Option Plan, 1992 Employee Stock Purchase Plan, or any other
compensatory plan or agreement, or, with respect to registration under Sections
1.2 hereof, in order to include in such registration securities registered
for the Company's own account.
SECTION 1.13 TERMINATION OF REGISTRATION RIGHTS.
(A) Except as set forth in subparagraph (b) below,
the right of any Holder to request registration or inclusion
in any registration pursuant to Section 1.2 or 1.3 shall
terminate on such
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date as all Registrable Securities held by such Holder may
immediately be sold by such Holder in the open market without
limitations as to the manner of such sale or the volume of
such sale and without having to file any forms or reports with
the Commission with respect to such sale under the Securities
Act.
(B) The provisions of subparagraph (a) above shall
not apply to any Holder who owns more than one percent (1%) of
the Company's outstanding stock until such time as such Holder
beneficially owns less than one percent (1%) of the
outstanding securities of the Company.
ARTICLE 2
MISCELLANEOUS
SECTION 2.1 GOVERNING LAW.
This Agreement shall be governed in all respects, including as
to validity, interpretation and effect, by the internal laws of the State of
Delaware, without giving effect to the conflict of laws rules thereof. Holder
and the Company hereby irrevocably submit to the jurisdiction of the courts of
the State of Delaware and the Federal courts of the United States of America
located in the State of Delaware, City and County of Dallas, solely in respect
of the interpretation and enforcement of the provisions of this Agreement and of
the documents referred to in this Agreement, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any of such document may not be enforced in or by said courts, and
the parties hereto irrevocably agree that all claims with respect to such action
or proceeding shall be heard and determined in such a Delaware State or Federal
court. Holder and the Company hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 2.4, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
SECTION 2.2 SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
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SECTION 2.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER.
This Agreement (including the Exhibits hereto) constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated, except by a written assignment
signed by the Company and the holders of at least fifty percent (50%) of the
Registrable Shares and any such amendment, waiver, discharge or termination
shall be binding on all the Holders, but in no event shall the obligation of any
Holder hereunder be materially increased, except upon the written consent of
such Holder.
SECTION 2.4 NOTICES, ETC.
All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by United Xxxx first-class
mail, postage prepaid, sent by facsimile or delivered personally by hand or
nationally recognized courier addressed (a) if to a Holder, as indicated on the
list of Holders attached hereto as Exhibit A, or at such other address as such
holder or permitted assignee shall have furnished to the Company in writing, or
(b) if to the Company, at such address or facsimile number as the Company shall
have furnished to each Holder in writing. All such notices and other written
communications shall be effective on the date of mailing, facsimile transfer or
delivery.
SECTION 2.5 DELAYS OR OMISSIONS.
No delay or omission to exercise any right, power or remedy
accruing to any Holder, upon any breach or default of the Company under this
Agreement shall impair any such right, power or remedy of such Holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default therefore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of any Holder of any breach or
default under this Agreement or any waiver on the part of any Holder of any
provisions or conditions of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
Holder, shall be cumulative and not alternative.
SECTION 2.6 RIGHTS; SEPARABILITY.
Unless otherwise expressly provided herein, a Holder's rights
hereunder are several rights, not rights jointly held with any of the other
Holders. In case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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SECTION 2.7 INFORMATION CONFIDENTIAL.
Each Holder acknowledges that the information received by them
pursuant hereto may be confidential and for its use only, and it will not use
such confidential information in violation of the Exchange Act or reproduce,
disclose or disseminate such information to any other person (other than its
employees or agents having a need to know the contents of such information, and
its attorneys), except in connection with the exercise of rights under this
Agreement, unless the Company has made such information available to the public
generally or such Holder is required to disclose such information by a
governmental body.
SECTION 2.8 TITLES AND SUBTITLES.
The titles of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be considered in
construing or interpreting this Agreement.
SECTION 2.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
FRESH CHOICE, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Title: President and CEO
STOCKHOLDER: Crescent Real Estate
Limited Partnership
By: Crescent Real Estate Equities, Ltd.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President, Law
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