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EXHIBIT 10.20
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REGISTRATION RIGHTS AGREEMENT
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Registration Rights Agreement dated as of January 16, 1998 between Blue
Chip Capital Fund Limited Partnership, a Delaware limited partnership ("Blue
Chip"), and Ciao Cucina Corporation, an Ohio corporation ("Ciao").
Blue Chip and Ciao are parties to a Note Purchase Agreement of even
date herewith, pursuant to which Blue Chip has made certain loans to Ciao, and
Ciao has issued a common stock purchase warrant to Blue Chip. Capitalized terms
used herein without definition shall have the respective meanings ascribed to
them in such Note Purchase Agreement. Pursuant to Section 1 of such Note
Purchase Agreement, Blue Chip and Ciao have agreed to enter into this Agreement.
Accordingly, the parties hereby agree as follows:
1. REGISTRATION.
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(a)(i) PROPOSED REGISTRATION. If Ciao should propose to
register any of its shares of Common Stock ("Common Stock") or other equity
securities of Ciao or any successor thereto for sale under the Securities Act of
1933 (the "Act"), including any registration made pursuant to the "small
business issuer" registration forms available under the Act, or to carry out an
offer of any such Common Stock or other equity securities pursuant to Regulation
A of the Act, Ciao shall give written notice to Blue Chip of such intention and,
upon the written request of Blue Chip given within thirty (30) calendar days
after such notice is given, Ciao shall use its best efforts to cause the Common
Stock held by Blue Chip or any other equity securities issued by Ciao or any
successor thereto which are owned by Blue Chip ("Registrable Shares") and of
which Blue Chip has requested registration to be included under the proposed
registration in accordance with the proposed method thereof stated in Blue
Chip's request; provided, however, that Ciao may, in lieu of including any or
all of such shares or such other securities under the proposed registration,
elect to effect a separate registration thereof if its proposed registration
relates to an underwritten public offering and the underwriters thereof object
to the inclusion of any or all of such shares or such other securities under
such registration. If Ciao shall elect to effect a separate registration in
accordance with the provisions of the preceding sentence, Ciao shall use its
best efforts to cause such separate registration to become effective not later
than ninety (90) days after the effectiveness of the originally proposed
registration. If Ciao determines, prior to the effectiveness of its originally
proposed registration, not to proceed with such registration, Ciao shall have no
further obligation under this Section 1(a) to register any such shares or other
equity securities under that registration statement.
(ii) DEMAND REGISTRATION. At any time when Ciao
has a class of equity securities registered pursuant to Section
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EXHIBIT 10.20
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12 of the Securities Exchange Act of 1934 or is subject to the reporting
requirements of Section 15 of such Act, Blue Chip may give notice to Ciao
requesting the registration under the Act of any or all of the Common Stock held
or to be held upon exercise of the Warrant by Blue Chip. Upon receipt of such
notice, Ciao shall use its best efforts to effect as promptly as possible the
registration under the Act of the shares of Common Stock that Ciao has been
requested to register pursuant to this Section 1(a)(ii). Ciao shall not be
obligated to file more than one registration statement under this Section
1(a)(ii) or to keep such registration statement effective for more than one
hundred twenty (120) days. Ciao shall not be obligated to effect any
registration pursuant to this Section 1(a)(ii) if such registration would
require an audit of Ciao as of a date other than its fiscal year end. Ciao may
defer once in any twelve (12) month period the filing of a registration
statement under this Section 1(a)(ii) for a period of up to ninety (90) days
based on the good faith judgment of the Board of Directors that such delay is
needed (x) to avoid premature disclosure of a matter if the Board has determined
that such disclosure would not be in the best interests of Ciao or (y) to avoid
conflict with another public offering by Ciao. Any registration statement
prepared pursuant to this Section 1 shall be subject to such restrictions or
limitations as may be applicable by law to the sales price or sales method of
the Common Stock.
(iii) OTHER REGISTRATION RIGHTS. If Ciao grants
any rights of the nature contained in this Section 1(a) to any other Person,
this Section 1 shall be deemed amended, at the option of Blue Chip, to grant to
Blue Chip rights equivalent to the most favorable rights granted to any other
Person.
(b) REGISTRATION PROCEDURES. If and whenever Ciao is required
by the provisions of this Section 1 to effect the registration of any of Blue
Chip's shares of Common Stock or other securities under the Act, Ciao shall, as
expeditiously as possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to such
shares or other securities and use all reasonable efforts to cause such
registration statement to become effective as promptly as possible;
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement as may be necessary to
keep such registration statement effective for one hundred twenty (120) days
from the date of its effectiveness;
(iii) Furnish to Blue Chip such number of copies of
the prospectus forming a part of such registration statement (including each
preliminary prospectus) as the Blue Chip may reasonably request;
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EXHIBIT 10.20
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(iv) Use its best efforts to register or qualify
such shares or other securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as Blue Chip shall reasonably
request, and do any and all other acts and things which may reasonably be
necessary or advisable to enable Blue Chip to consummate the disposition of
such shares or such other securities during the period provided in Section
1(b)(ii) above; and
(v) Notify Blue Chip during the period when a prospectus
relating thereto is required to be delivered under the Act, of the happening of
any event which causes the prospectus forming a part of such registration
statement to include an untrue statement of a material fact or to omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, and at the request of Blue Chip prepare and furnish Blue Chip a
reasonable number of copies of the supplement to or any amendment of such
prospectus necessary so as to render such prospectus, as amended or
supplemented, in compliance with the provisions of the Act.
(c) EXPENSES. All expenses incurred by Ciao in complying with
this Section 1, including without limitation all registration and filing fees,
printing expenses, expenses of complying with securities or blue sky laws, fees
and disbursements of counsel for Ciao and Blue Chip and counsel for any
underwriters of the offering and any accountants' fees and expenses incident to
or required by any such registration, shall be borne by Ciao to the maximum
extent permitted by law. All underwriting fees and commissions incurred by Blue
Chip shall be borne by Blue Chip.
(d) INDEMNIFICATION.
(i) In the event of any registration of Blue Chip's shares
of Common Stock or other securities under this Section 1, Ciao shall defend,
indemnify and hold harmless Blue Chip, its officers, directors, partners,
affiliates, each underwriter thereof and each person which controls Blue Chip or
such underwriter within the meaning of the Act, against any losses, claims,
damages or liabilities and any action in respect thereof, joint or several, to
which Blue Chip or any such officer, director, underwriter or controlling person
may become subject under the 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 or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or any omission
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or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, other than
that which is based upon information supplied by Blue Chip in writing, and Ciao
shall reimburse each of Blue Chip and such officers, directors, underwriters and
controlling persons for any legal or other expenses reasonably incurred by any
of them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that Ciao shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon information provided in writing to Ciao by
Blue Chip or any such officer, director, underwriter or controlling person; and
provided further that no Shareholder shall have any liability for any claims
arising out of such registration that occurs after such Shareholder ceases to be
a director of Ciao. This indemnity shall be in addition to any liability which
Ciao and the Shareholder may otherwise have. Nothing herein shall be deemed to
prohibit any Shareholder from seeking any indemnification from Ciao to which
such Shareholder is otherwise entitled.
(ii) In the event of any registration of such shares or other
securities under this Section 1, Blue Chip shall indemnify Ciao and the
Shareholder against any losses, claims, damages or liabilities and any action
in respect thereof, joint or several, to which Ciao or the Shareholder may
become subject under the 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 or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, 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, which is based upon
information supplied by Blue Chip in writing, and Blue Chip shall reimburse
Ciao and the Shareholder for any legal or other expenses reasonably incurred by
Ciao or the Shareholder in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that Blue Chip
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon information provided
to Ciao by Ciao or the Shareholder. This indemnity shall be in addition to any
liability which Blue Chip may otherwise have.
(iii) If for any reason any indemnification described in
Section 1(d)(i) or 1(d)(ii) above may not be provided by the party or parties
required therein to provide such indemnification (the "Indemnifying Parties"),
in lieu of providing such indemnification, the Indemnifying Parties shall
contribute to the amount paid or payable by the party or parties to be provided
such indemnification (the "Indemnified Parties") as a result of such losses,
claims, damages, liabilities or
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actions, in such proportion as is appropriate to reflect the relative fault of
the parties in connection with any statement or omission which resulted in such
losses, claims, damages, liabilities or actions, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Parties and the
Indemnified Parties 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 one of the
Indemnifying Parties or by one of the Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The parties agree that it would not be just and equitable if contribution
pursuant hereto were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to herein. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(iv) Promptly after receipt by an indemnified
party under Section 1(d)(i) or 1(d)(ii) of notice of the commencement of any
action, such indemnified party shall notify the indemnifying party of the
commencement thereof. If any such action shall be brought against an indemnified
party and it shall give notice to the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and to
assume the defense thereof with counsel satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such Section for any fees of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party in connection with the defense thereof. If an indemnifying
party assumes the defense of such an action, (a) no compromise or settlement
thereof may be effected by the indemnifying party without the indemnified
party's consent and (b) the indemnifying party shall have no liability with
respect to any compromise or settlement thereof effected without its consent. If
notice is given to an indemnifying party of the commencement of any action and
it does not, within ten days after the indemnified party's notice is given, give
notice to the indemnified party of its election to assume the defense thereof,
the indemnifying party shall be bound by any determination made in such action
or any compromise or settlement thereof effected by the indemnified party.
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EXHIBIT 10.20
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2. NOTICES.
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All notices, consents and other communications under this agreement
shall be in writing and shall be deemed to have been duly given when (a)
delivered by hand or (b) sent by telecopier (with receipt confirmed), provided
that a copy is mailed by Federal Express or other express delivery service, in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses, and telecopier numbers as a party may designate as
to itself by notice to the other parties).
(a) If to Blue Chip:
c/o Blue Chip Venture Company
2000 PNC Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇, Stettinius & Hollister LLP
1800 Star Bank Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) If to Ciao:
Ciao Cucina Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 513-___-____
with a copy to:
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
3. MISCELLANEOUS.
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3.1 EXPENSES. Each party shall bear its own expenses incident
to the preparation, negotiation, execution and delivery of this Agreement and
the performance of its obligations hereunder; except that Ciao shall reimburse
Blue Chip for legal,
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accounting and other out-of-pocket expenses incurred by it in connection with
the preparation and negotiation of this Agreement.
3.2 CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not be given any effect in the
interpretation of this agreement.
3.3 NO WAIVER. The failure of a party to insist upon strict
adherence to any obligation of this Agreement shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
3.4 COUNTERPARTS. This Agreement will be executed in two (2)
or more counterparts each of which shall be considered an original.
3.5 GOVERNING LAW. This Agreement shall be governed by the
internal law of the State of Ohio, without regard to the conflicts of law
principles thereof.
3.6 ATTORNEY'S FEES. In any action or proceeding brought by a
party to enforce any provision of this Agreement, the prevailing party shall be
entitled to recover the reasonable costs and expenses incurred by it in
connection with that action or proceeding (including, but not limited to,
attorney's fees).
3.7 DESIGNATION OF FORUM AND CONSENT TO JURISDICTION. The
parties hereto (a) designate the United States District Court for the Southern
District of Ohio, Western Division, or the Court of Common Pleas, ▇▇▇▇▇▇▇▇
County, Ohio, as the forum where all matters pertaining to this Agreement may be
adjudicated, and (b) by the foregoing designation, consent to the exclusive
jurisdiction and venue of such Court for the purpose of adjudicating all matters
pertaining to this Agreement. The parties hereby waive trial by jury in any such
action.
BLUE CHIP:
BLUE CHIP CAPITAL FUND LIMITED PARTNERSHIP
By: BLUE CHIP VENTURE COMPANY
its General Partner
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Its:President
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CIAO:
CIAO CUCINA CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its:Executive Vice President/CFO
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bcciao.rra
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