EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 17, 2005, by and between RIVIERA TOOL COMPANY, a Michigan
corporation (the "Company"), and Laurus Master Fund, Ltd. (the "Purchaser").
This Agreement is made pursuant to (i) the Securities Purchase
Agreement, dated as of the date hereof, by and between the Purchaser and the
Company (as amended, modified or supplemented from time to time, the "Securities
Purchase Agreement"), and pursuant to the Note and the Options referred to
therein and (ii) the Security Agreement, dated as of the date hereof, by and
between the Purchaser, the Company and certain Subsidiaries of the Company (as
amended, modified and/or supplemented from time to time, the "Security
Agreement"), and pursuant to the Notes and the Options referred to therein.
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Securities Purchase Agreement or the Security Agreement,
as applicable, shall have the meanings given such terms in the Securities
Purchase Agreement or the Security Agreement, as applicable. As used in this
Agreement, the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, no
par value.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than one
hundred twenty days (120) days following the date hereof, and (ii) with respect
to each additional Registration Statement required to be filed hereunder, a date
no later than sixty (60) days following the applicable Filing Date.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Filing Date" means, (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than
sixty (60) days following the date hereof, (ii) with respect to the second
$2,000,000 tranche of Loans evidenced by a serialized Minimum Borrowing Note
funded after the date hereof or any serialized Minimum Borrowing Note issued
thereafter with the Company's consent, the date which is sixty (60) days after
such funding of such additional $2,000,000 of Loans evidenced by a such
serialized Minimum Borrowing Note, and (iii) with respect to shares of Common
Stock issuable to the Holder as a result of adjustments to the Fixed Conversion
Price or Exercise Price made pursuant to the Note or Section 4, the Option or
otherwise, thirty (30) days after
the occurrence of such event or the date of the adjustment of the Fixed
Conversion Price or Exercise Price.
"Holder" or "Holders" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Options" means the Common Stock options issued pursuant to
the Securities Purchase Agreement and Security Agreement.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means (i) the shares of Common Stock
issued upon the conversion of the $3.2 million Secured Convertible Term Note,
(ii) shares of Common Stock issued upon the conversion of the Minimum Borrowing
Note, and (iii) the shares of Common Stock issuable upon exercise of the Option.
For the avoidance of any doubt, the parties hereby acknowledge and agree that
the Company shall only be obligated to register shares of Common Stock issued
upon conversion of up to $4 million principal amount under the Minimum Borrowing
Notes (in the aggregate).
"Registration Statement" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
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"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute.
"Securities Purchase Agreement" shall have the meaning
provided above.
"Security Agreement" shall have the meaning provided above.
"Trading Market" means any of the NASD OTCBB, NASDAQ SmallCap
Market, the Nasdaq National Market, the American Stock Exchange or the New York
Stock Exchange.
2. Registration.
(a) On or prior to the applicable Filing Date, the Company
shall prepare and file with the Commission a Registration Statement
covering the Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall
be on Form S-1. The Company shall use its reasonable commercial efforts
to cause the Registration Statement to become effective and remain
effective as provided herein. The Company shall use its reasonable
commercial efforts to cause the Registration Statement to be declared
effective under the Securities Act as promptly as possible after the
filing thereof, but in any event no later than the Effectiveness Date.
The Company shall use its reasonable commercial efforts to keep the
Registration Statement continuously effective under the Securities Act
until the date which is the earlier date of when (i) all Registrable
Securities have been sold or (ii) all Registrable Securities may be
sold immediately without registration under the Securities Act and
without volume restrictions pursuant to Rule 144(k), as determined by
the counsel to the Company pursuant to a written opinion letter to such
effect, addressed and acceptable to the Company's transfer agent and
the affected Holders (the "Effectiveness Period").
(b) If: (i) the Registration Statement is not filed on or
prior to the Filing Date; (ii) the Registration Statement is not
declared effective by the Commission by the Effectiveness Date; (iii)
after the Registration Statement is filed with and declared effective
by the Commission, the Registration Statement ceases to be effective
(by suspension or otherwise) as to all Registrable Securities to which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being
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succeeded immediately by an additional registration statement filed and
declared effective) for a period of time which shall exceed 30 days in
the aggregate per year or more than 20 consecutive calendar days
(defined as a period of 365 days commencing on the date the
Registration Statement is declared effective); or (iv) the Common Stock
is not listed or quoted, or is suspended from trading on any Trading
Market for a period of five (5) consecutive Trading Days (provided the
Company shall not have been able to cure such trading suspension within
30 days of the notice thereof or list the Common Stock on another
Trading Market); (any such failure or breach being referred to as an
"Event," and for purposes of clause (i) or (ii) the date on which such
Event occurs, or for purposes of clause (iii) the date which such 30
day or 20 consecutive day period (as the case may be) is exceeded, or
for purposes of clause (iv) the date on which such five (5) Trading Day
period is exceeded, being referred to as "Event Date"), then until the
applicable Event is cured, the Company shall pay, for each day that an
Event has occurred and is continuing, to each Holder an amount in cash,
as liquidated damages and not as a penalty, equal to one-thirtieth
(1/30th) of the product of: (A) the sum of (I) the original principal
amount of the Note (as defined in the Securities Purchase Agreement)
plus (y) the original principal amount of each applicable Minimum
Borrowing Note (as defined in the Security Agreement) multiplied by (B)
0.02. While such Event continues, such liquidated damages shall be paid
not less often than each thirty (30) days. Any unpaid liquidated
damages as of the date when an Event has been cured by the Company
shall be paid within three (3) business days following the date on
which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the
Company shall cause its counsel to issue an opinion substantially in
the form attached hereto as Exhibit A, and subject to such counsel's
reliance on reasonable assumptions and certificates of the appropriate
parties hereto, to the transfer agent stating that the shares are
subject to an effective registration statement and can be reissued free
of restrictive legend upon notice of a sale by the Purchaser and
confirmation by the Purchaser that it has complied with the prospectus
delivery requirements, provided that the Company has not advised the
transfer agent orally or in writing that the opinion has been
withdrawn. Copies of the blanket opinion required by this Section 2(c)
shall be delivered to Laurus within the time frame set forth above.
3. Registration Procedures. If and whenever the Company is required by
the provisions hereof to effect the registration of any Registrable Securities
under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission the Registration
Statement with respect to such Registrable Securities, respond as
promptly as possible to any comments received from the Commission, and
use its best efforts to cause the Registration Statement to become and
remain effective for the Effectiveness Period with respect thereto, and
promptly provide to the Purchaser copies of all filings and Commission
letters of comment relating thereto;
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(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement and to use
commercially reasonable efforts to cause such Registration Statement to
remain effective until the expiration of the Effectiveness Period;
(c) furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein (including
each preliminary Prospectus) as the Purchaser reasonably may request to
facilitate the public sale or disposition of the Registrable Securities
covered by the Registration Statement;
(d) use its commercially reasonable efforts to register or
qualify the Purchaser's Registrable Securities covered by the
Registration Statement under applicable securities or "blue sky" laws
of such jurisdictions within the United States as the Purchaser may
reasonably request, provided, however, that the Company shall not for
any such purpose be required to qualify generally to transact business
as a foreign corporation or subject itself to taxation in any
jurisdiction where it is not so qualified or subject or to consent to
general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by the
Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) promptly notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained 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 in light of the circumstances then existing.
4. Registration Expenses. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including reasonable counsel fees) incurred in connection with complying with
applicable state securities or "blue sky" laws, fees of the NASD, transfer
taxes, fees of transfer agents and registrars, fees of, and disbursements
incurred by, one counsel for the Holders (to the extent such counsel is required
due to Company's failure to meet any of its obligations hereunder), are called
"Registration Expenses". All selling commissions applicable to the sale of
Registrable Securities, including any fees and disbursements of any special
counsel to the Holders beyond those included in Registration
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Expenses, are called "Selling Expenses." The Company shall only be responsible
for all Registration Expenses.
5. Indemnification.
(a) In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the Purchaser, and its
officers, directors and each other person, if any, who controls the
Purchaser within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which the
Purchaser, or such persons may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary Prospectus or final Prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are
based upon 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, and will reimburse the Purchaser, and each such
person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished by or on behalf of the
Purchaser or any such person in writing specifically for use in any
such document.
(b) In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the
Purchaser will indemnify and hold harmless the Company, and its
officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company
or such persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact which was
furnished in writing by the Purchaser to the Company expressly for use
in (and such information is contained in) the Registration Statement
under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon 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, and will
reimburse the Company and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and
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only to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with
information furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document. Notwithstanding
the provisions of this paragraph, the Purchaser shall not be required
to indemnify any person or entity in excess of the amount of the
aggregate net proceeds received by the Purchaser in respect of
Registrable Securities in connection with any such registration under
the Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an "Indemnifying
Party"), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to such Indemnified Party other than
under this Section 5(c) and shall only relieve it from any liability
which it may have to such Indemnified Party under this Section 5(c) if
and to the extent the Indemnifying Party is prejudiced by such
omission. In case any such action shall be brought against any
Indemnified Party and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to
such Indemnified Party, and, after notice from the Indemnifying Party
to such Indemnified Party of its election so to assume and undertake
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party under this Section 5(c) for any legal expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof; if the Indemnified Party retains its own counsel, then
the Indemnified Party shall pay all fees, costs and expenses of such
counsel, provided, however, that, if the defendants in any such action
include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded based on the advice
of counsel that there may be reasonable defenses available to it which
are different from or additional to those available to the Indemnifying
Party or if the interests of the Indemnified Party reasonably may be
deemed to conflict with the interests of the Indemnifying Party, the
Indemnified Party shall have the right to select one separate counsel
and to assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the Indemnifying Party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the Securities Act in any case in
which either (i) the Purchaser, or any officer, director or controlling
person of the Purchaser, makes a claim for indemnification pursuant to
this Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
that such indemnification
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may not be enforced in such case notwithstanding the fact that this
Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of
the Purchaser or such officer, director or controlling person of the
Purchaser in circumstances for which indemnification is provided under
this Section 5; then, and in each such case, the Company and the
Purchaser will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from
others) in such proportion so that the Purchaser is responsible only
for the portion represented by the percentage that the public offering
price of its securities offered by the Registration Statement bears to
the public offering price of all securities offered by such
Registration Statement, provided, however, that, in any such case, (A)
the Purchaser will not be required to contribute any amount in excess
of the public offering price of all such securities offered by it
pursuant to such Registration Statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Common Stock of the Company is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act and, except with respect to
certain matters which the Company has disclosed to the Purchaser on
Schedule 6(a), during the preceding three fiscal years of the Company,
the Company has timely filed all proxy statements, reports, schedules,
forms, statements and other documents required to be filed by it under
the Exchange Act. The Company has filed (i) its Annual Report on Form
10-K for its fiscal year ended August 31, 2004 and (ii) its Quarterly
Report on Form 10-Q for the fiscal quarter ended February 28, 2005
(collectively, the "SEC Reports"). Each SEC Report was, at the time of
its filing, in substantial compliance with the requirements of its
respective form and none of the SEC Reports, nor the financial
statements (and the notes thereto) included in the SEC Reports, as of
their respective filing dates, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply as to form
in all material respects with applicable accounting requirements and
the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of
unaudited interim statements, to the extent they may not include
footnotes or may be condensed) and fairly present in all material
respects the financial condition, the results of operations and the
cash flows of the Company and its subsidiaries, on a consolidated
basis, as of, and for, the periods presented in each such SEC Report.
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(b) The Common Stock is listed for trading on a Principal
Market and satisfies all requirements for the continuation of such
listing in all material respects. The Company has not received any
notice that its Common Stock will be delisted from its Principal Market
(except for prior notices which have been fully remedied) or that the
Common Stock does not meet all requirements for the continuation of
such listing.
(c) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any
security under circumstances that would cause the offering of the
Securities pursuant to the Securities Purchase Agreement and the
Security Agreement to be integrated with prior offerings by the Company
for purposes of the Securities Act which would prevent the Company from
selling the Common Stock pursuant to Rule 506 under the Securities Act,
or any applicable exchange-related stockholder approval provisions, nor
will the Company or any of its affiliates or subsidiaries take any
action or steps that would cause the offering of such Securities to be
integrated with other offerings.
(d) The Options, the Notes and the shares of Common Stock
which the Purchaser may acquire pursuant to the Options and the Notes
are all restricted securities under the Securities Act as of the date
of this Agreement. The Company will not issue any stop transfer order
or other order impeding the sale and delivery of any of the Registrable
Securities at such time as such Registrable Securities are registered
for public sale or an exemption from registration is available, except
as required by federal or state securities laws.
(e) The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Notes and the exercise
of the Option and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the Registrable
Securities is binding upon the Company and enforceable regardless of
the dilution such issuance may have on the ownership interests of other
shareholders of the Company.
(f) The Company will at all times on and after the sixtieth
(60) day following the Closing Date have authorized and reserved a
sufficient number of shares of Common Stock for the full conversion of
the Notes and the exercise of the Options.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, will be entitled to
exercise all rights granted by law and under this Agreement, including
recovery of damages.
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(b) No Piggyback on Registrations. Except as and to the extent
specified in Schedule 7(b) hereto, neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in any Registration
Statement other than the Registrable Securities, and the Company shall
not after the date hereof enter into any agreement providing any such
right for inclusion of shares in the Registration Statement to any of
its security holders. Except as and to the extent specified in Schedule
7(b) hereto, the Company has not previously entered into any agreement
granting any registration rights with respect to any of its securities
to any Person that have not been fully satisfied.
(c) Compliance. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act
as applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of
any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce
the provisions of this paragraph. For purposes of this Section 7(d), a
"Discontinuation Event" shall mean (i) when the Commission notifies the
Company whether there will be a "review" of such Registration Statement
and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof
and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration Statement
or Prospectus or for additional information; (iii) the issuance by the
Commission of any stop order suspending the effectiveness of such
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv)
the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and/or
(v) the occurrence of any event or passage of time that makes the
financial statements included in such Registration Statement ineligible
for inclusion therein or any statement made in such Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to such Registration Statement, Prospectus
or other documents so that, in the case of such Registration Statement
or Prospectus, as the case may be, it will not
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contain any 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, in light of the circumstances under which they were
made, not misleading.
(e) Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of
others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or
business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to each
Holder written notice of such determination and, if within fifteen days
after receipt of such notice, any such Holder shall so request in
writing, the Company shall include in such registration statement all
or any part of such Registrable Securities such holder requests to be
registered to the extent the Company may do so without violating
registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable to all
holders of registration rights and subject to obtaining any required
consent of any selling stockholder(s) to such inclusion under such
registration statement.
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holders of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of certain Holders and that does
not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority of the Registrable Securities
to which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(g) Notices. Any notice or request hereunder may be given to
the Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or
other national overnight next day carrier (collectively, "Courier") or
telecopy (confirmed by mail). Notices and requests shall be, in the
case of those by hand delivery, deemed to have been given when
delivered to any party to whom it is addressed, in the case of those by
mail or overnight mail, deemed to have been given three (3) business
days after the date when deposited in the mail or with the overnight
mail carrier, in the
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case of a Courier, the next business day following timely delivery of
the package with the Courier, and, in the case of a telecopy, when
confirmed. The address for such notices and communications shall be as
follows:
If to the Company: Riviera Tool Company
0000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, CFO
Facsimile: (000) 000-0000
If to a Purchaser: To the address set forth under such
Purchaser name on the signature
pages hereto.
If to any other Person
who is then the
registered Holder: To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter in accordance
with this Section 7(g) by such Person.
(h) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder. The
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as
permitted under the Securities Purchase Agreement, the Security
Agreement and each Note.
(i) Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be
deemed to be an original and, all of which taken together shall
constitute one and the same Agreement. In the event that any signature
is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.
(j) THIS AGREEMENT AND THE OTHER RELATED AGREEMENTS SHALL BE
GOVERNED BY AND CONSTRUED AND
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ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE COMPANY HEREBY CONSENTS
AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF
NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY, ON THE ONE
HAND, AND THE PURCHASER, ON THE OTHER HAND, PERTAINING TO THIS
AGREEMENT OR ANY OF THE RELATED AGREEMENTS OR TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER RELATED AGREEMENTS;
PROVIDED, THAT THE PURCHASER AND THE COMPANY ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER
PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE THE PURCHASER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION
IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE
COLLATERAL (AS DEFINED IN THE MASTER SECURITY AGREEMENT) OR ANY OTHER
SECURITY FOR THE OBLIGATIONS (AS DEFINED IN THE MASTER SECURITY
AGREEMENT), OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
THE PURCHASER. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND THE COMPANY HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS.
THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING
SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE PURCHASER AND/OR THE COMPANY ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, ANY OTHER RELATED
AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
(k) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
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forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
RIVIERA TOOL COMPANY LAURUS MASTER FUND, LTD.
By: By:
----------------------------- ---------------------------------
Name: Name:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
Address for Notices:
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Grin
Facsimile: 000-000-0000
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EXHIBIT A
[Month __, 2005]
[____________]
[Insert Address]
Attn:
Re: Riviera Tool Company Registration Statement on Form S-1
Ladies and Gentlemen:
As counsel to Riviera Tool Company ("Riviera") we have been requested
to furnish our letter to you relating to sales by ___________ ("_______") of up
to _________ shares of Riviera common stock (the "________ Shares"). The
________ Shares have been included in a Registration Statement on Form S-1 (No.
___________), as amended (the "Registration Statement"), filed with the United
States Securities and Exchange Commission (the "Commission") and declared
effective by the Commission ___________. As of the date hereof, the Registration
Statement remains in effect and no stop order suspending such effectiveness has
been issued by the Commission. The sale of the _______ Shares by ___________
under and pursuant to the Registration Statement will not be in violation of
Section 5 of the Securities Act of 1933, as amended.
With respect to the removal of any restrictive legend on the
certificates evidencing the __________ Shares, you are hereby instructed to
remove such legend upon receipt of a broker representation letter that the
___________ Shares will be sold in accordance with the "Plan of Distribution"
contained in the prospectus and that a prospectus relating to the ___________
Shares has been delivered in connection with such sale of ____________ Shares.
If you require any further information, please contact the undersigned.
Very truly yours,
[Company counsel]
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