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Exhibit 8
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement dated as of May 22,
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 Note Purchase Agreements dated as of
January 16, 1998 and of even date herewith, pursuant to which Blue Chip has made
certain loans to Ciao, and Ciao has issued common stock purchase warrants to
Blue Chip. Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in such Note Purchase Agreements. Pursuant
to Section 1 of such Note Purchase Agreements, Blue Chip and Ciao have agreed to
enter into this Agreement. This Agreement amends and restates in its entirety
the Registration Rights Agreement dated as of January 16, 1998. Accordingly, the
parties hereby agree as follows:
1. REGISTRATION.
(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.
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(ii) DEMAND REGISTRATION. At any time when Ciao has a class of
equity securities registered pursuant to Section 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
Warrants 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
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(including each preliminary prospectus) as the Blue Chip may
reasonably request;
(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
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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, 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. This
indemnity shall be in addition to any liability which Ciao may otherwise have.
(ii) In the event of any registration of such shares or other
securities under this Section 1, Blue Chip shall indemnify Ciao against any
losses, claims, damages or liabilities and any action in respect thereof, joint
or several, to which Ciao 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 for any legal or other expenses reasonably incurred by Ciao 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. 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 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
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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.
2. NOTICES.
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
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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
201 East Fifth Street
Cincinnati, Ohio 45202
Telecopy No.: 513-723-2306
Attention: John H. Wyant
with a copy to:
Taft, Stettinius & Hollister LLP
1800 Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202
Telecopier No.: 513-381-0205
Attention: Gerald S. Greenberg, Esq.
(b) If to Ciao:
Ciao Cucina Corporation
700 Walnut Street
Suite 300
Cincinnati, Ohio 45242
Telecopier No.: 513-241-7700
with a copy to:
Katz, Greenberger & Norton LLP
105 East Fourth Street
Suite 400
Cincinnati, Ohio 45202
Attention: Scott P. Kadish, Esq.
Telecopier No.: 513-621-9285
3. MISCELLANEOUS.
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, 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.
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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, Hamilton 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/ John H. Wyant
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Its: President
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CIAO:
CIAO CUCINA CORPORATION
By: /s/ Stephen J. Kent
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Its: President
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