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EXHIBIT 4.1
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made by and between
the undersigned (the "Shareholder") and RICK'S CABARET INTERNATIONAL, INC., a
Texas corporation (the "Company").
WITNESSETH:
WHEREAS, pursuant to that certain Subscription Agreement (the "Subscription
Agreement") the Shareholder has purchased shares (the "Shares") of
common stock of the Company, par value $.01 per share (the "Common Stock") in
the Offering of Shares of Common Stock (the "Offering") made by the Company as
described in the Confidential Private Placement Memorandum dated September 3,
1996 (the "Memorandum");
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Registration. Commencing 90 days after the Termination Date (as
defined in the Memorandum) of the Offering and continuing for a period of two
years from the Termination Date, subject to the Shareholder and the purchasers
in the Offering holding, at the time of exercise of their rights, Shares of
Common Stock which represent in the aggregate a minimum of 5,000 shares (the
"Registration Shares") (such number as determined without adjustment for stock
dividends, reclassifications, splits and reverse splits occurring after the date
of the closing of the Offering), upon the written request of the Shareholder and
such purchasers in the Offering requesting that the Company effect the
registration under the Securities Act of 1933, as amended (the "Securities Act")
of all or a specified portion of the Registration Shares, the Company will use
its best efforts to file a registration statement (the "Registration Statement")
under the Securities Act with the Securities and Exchange Commission (the
"Commission"). The Company shall promptly give written notice of such requested
registration to all holders of record of shares of Common Stock, which were
purchased or issued in connection with the Offering. The Registration Statement
will include the Registration Shares, all other shares for which written notice
was given by the Company which are requested to be included by the holders
thereof by written notice to the Company within thirty (30) days of the giving
of written notice by the Company and may include shares of Common Stock other
than the foregoing, either for the Company's account or for the account of other
selling shareholders. The Company will use reasonable efforts to cause the
Registration Statement to become effective and to keep the Registration
Statement current for a period of two years after the Termination Date of the
Offering. The Company shall not be obligated to effect more than one
registration on behalf of Shareholder and purchasers in the Offering under this
section. Notwithstanding the foregoing, if the Company is engaged in
negotiations in respect of an acquisition or financing transaction and, in the
good faith judgment of the Board of Directors such transaction would be
adversely affected by the filing of the Registration Statement, the Company
shall be entitled to postpone the filing of such registration statement until
such transaction would not be adversely affected by such filing but, in any
event, for a period not to exceed six months.
2. Registration Procedures.
(a) In performing its obligations under Section 1 to register the Shares,
the Company will, subject to the limitations provided herein, as
expeditiously as possible:
(i) prepare and file with the Commission the Registration Statement
and use its commercially reasonable best efforts to cause such
registration to become and remain effective for the term
specified herein;
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(ii) 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 keep the
Registration Statement effective in accordance with the terms of
the Agreement and to comply with the provisions of the Securities
Act with respect to the disposition of all shares covered by the
Registration Statement;
(iii) furnish to the Shareholder one conformed copy of the Registration
Statement and of each such amendment and supplement thereto (in
each case including all exhibits), one copy of the Prospectus
(including each preliminary prospectus and any summary
prospectus) and any other Prospectus filed under Rule 424 under
the Securities Act, and such other documents, as the Shareholder
may reasonably request;
(iv) use its reasonable efforts to (a) register or qualify the Shares
under such other securities or blue sky laws of such jurisdictions
as the Shareholder shall reasonably request, (b) keep such
registration or qualification in effect for so long as each of the
Registration Statement remain in effect, and (c) take any other
action which may be reasonably necessary or advisable to enable
the Shareholder to consummate the disposition of the Shares in
such jurisdictions, except that the Company shall not for any such
purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subdivision (iv) be obligated to be
so qualified, to consent to general service of process in any such
jurisdiction, or to take any such action which would impose
unreasonable expense on the Company;
(v) furnish to the Shareholder a copy of an opinion of counsel for the
Company rendered to the underwriter, if one is engaged, dated the
effective date of each of the Registration Statement (and, if such
registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), covering
substantially the same matters with respect to each registration
statement and prospectus as are customarily covered in opinions of
issuer's counsel delivered to the underwriters in underwritten
public offerings of securities;
(vi) notify the Shareholder at any time when a Prospectus relating to
the Shares is required to be delivered under the Securities Act,
upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made, and prepare and furnish to the Shareholder one copy of a
supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of
such securities, 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 in the light of the circumstances under
which they were made;
(vii) otherwise use reasonable efforts to comply with all applicable
rules and regulations of the Commission;
(viii) provide and cause to be maintained a transfer agent for the
Common Stock from and after a date not later than the effective
date of the Registration Statement;
(ix) properly notify any securities exchange on which any of the
Company's Common Stock is listed of the registration of any of the
Shares, and use its best efforts to satisfy all prerequisites and
regulations of any such exchange relating to the trading of such
Shares on such exchange;
(x) if requested by the Shareholder, promptly incorporate in a
prospectus supplement or post-effective amendment such information
as the Shareholder reasonably requests to be included therein with
respect to the number of Shares being sold by the Shareholder and
the
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Shareholder's plan of distribution and promptly make all required
filings of such prospectus supplement or post-effective amendment;
(xi) as promptly as practicable after filing with the Commission of any
document which is incorporated by reference in a prospectus
contained in a registration statement, deliver a copy of such
document to the Shareholder;
(xii) cooperate with the Shareholder to facilitate the timely
preparation and delivery of certificates (not bearing any
restrictive legends) representing Shares to be sold under the
Registration Statement, in such denominations and registered in
such names as the Shareholder may reasonably request; and
(xiii) make available for inspection by the Shareholder, and any one
attorney, accountant or other agent retained by one or more
holders of Shares (the "Inspector"), all financial and other
records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement;
provided that records which the Company determines, in good
faith, to be confidential and which it notifies the Inspector
are confidential shall not be disclosed by the Inspector unless
(i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the Registration Statement
or (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction;
provided, further, the Shareholder agrees that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action and to
prevent disclosure of the Records deemed confidential.
(b) All expenses incident to the Company's performance of its obligations
under this Agreement, including without limitation, all registration
and filing fees, fees and expenses of compliance with securities and
Blue Sky laws, printing expenses, fees and disbursements of the
Company's counsel, independent certified public accountants, and other
persons retained by the Company (all such expenses being herein called
"Registration Expenses") will be borne by the Company. The Shareholder
shall be responsible for all discounts and commissions relating to the
Shares and for the fees and expenses of counsel and other persons
engaged by the Shareholder.
3. Obligations of Shareholder.
(a) The Shareholder agrees that it will offer and sell Shares in
compliance with all applicable state and federal securities laws.
Specifically, without limitation, the Shareholder agrees as follows:
(i) The Shareholder agrees not to use any prospectus (as that term is
defined under the Securities Act) for the purpose of offering or
selling the Shares to the public except for the Prospectus, as
the same may be supplemented and amended from time to time.
(ii) Neither the Shareholder nor any affiliate of the Shareholder
shall engage in any practice which would violate Rule 10b-6
promulgated under the Securities Exchange Act of 1934 ("Exchange
Act").
(iii) Neither the Shareholder nor any affiliate of the Shareholder
shall solicit purchases of Common Stock to facilitate the
distribution of Shares in violation of Rule 10b-2 promulgated
under the Exchange Act.
(iv) Neither the Shareholder nor any affiliate of the Shareholder shall
effect any stabilizing transactions to facilitate the offer and
sale of Shares to the public in violation of Rule 10b-7
promulgated under the Exchange Act.
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(b) The Shareholder agrees to promptly notify the Company as and when any
Shares are sold and when the Shareholder elects to terminate all
further offers and sales of Shares pursuant to the Registration
Statement. The Shareholder acknowledges that any Shares which have not
been sold within two years after the Termination Date of the Offering
or any earlier termination of the distribution of the Shares will be
removed from registration by means of a post-effective amendment to
the Registration Statement.
(c) It shall be a condition precedent to the obligations of the Company to
take any action with respect to registering the Shares that the
Shareholder furnish the Company in writing such information regarding
the Shareholder, the Shares and other securities of the Company held
by the Shareholder, and the distribution of such Shares as the Company
may from time to time reasonably request in writing. If the
Shareholder refuses to provide the Company with any of such
information on the grounds that it is not necessary to include such
information in the Registration Statement, the Company may exclude the
Shareholder's Shares from the Registration Statement if the Company
provides the Shareholder with an opinion of counsel to the effect that
such information must be included in the Registration Statement and
the Shareholder thereafter continues to withhold such information.
The Shareholder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
2(a)(vi), the Shareholder will forthwith discontinue the Shareholder's
disposition of Shares pursuant to the Registration Statement until the
Shareholder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2(a)(vi) and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Shareholder's
possession, of the Prospectus current at the time of receipt of such
notice.
4. Public Offering by the Company. Notwithstanding the registration rights
granted to the Shareholder under this Agreement, in the event the Company files
a registration statement for an underwritten public offering of Common Stock (a
"Company Offering") within two years of the Termination Date of the Offering and
while the Registration Statement covering the Registration Shares is effective,
then upon the request of the Company's underwriter in such Company Offering, the
Shareholder agrees to enter into an agreement pursuant to which the Shareholder
will be prohibited from transferring the Shares for such period of time, not to
exceed 90 days after completion of the Company Offering, as the Company's
underwriter may request. The Company may enter stop transfer orders with its
transfer agent in order to effect this prohibition. In the event the Company
makes a Company Offering and the Company's underwriter imposes transfer
restrictions on the sale of Shares, the period during which the Registration
Statement will be kept current shall not be extended beyond the maximum two-year
period from the Termination Date of the Offering as provided in Section 1.
5. Restrictions on Transfer. The Shareholder agrees that it will not sell,
exchange, pledge or otherwise transfer any Shares except in transactions (i)
made pursuant to the Registration Statement, or (ii) which are exempt from all
registration requirements of the Securities Act (or conducted pursuant to Rule
144 thereunder) and all applicable state securities laws, and for which the
Company is provided with an opinion of counsel to the Shareholder and other
evidence as may be reasonably satisfactory to the Company to the effect that
such transfer will not be in violation of the Securities Act and all applicable
state securities laws.
6. Indemnification.
(a) Indemnification by the Company. To the extent permitted by law, the
Company will, and hereby does, indemnify and hold harmless the
Shareholder, its directors and officers, each other natural person,
corporation, business trust, association, company, partnership, joint
venture and other entity (each, a "Person") who participates as an
underwriter in the offering or sale of such securities and each other
Person, if any, who controls the Shareholder or any such underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Shareholder or
any such director or officer or underwriter or controlling Person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims,
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damages or liabilities (or actions or proceedings, whether commenced
or threatened, 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 securities
were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary 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, and the
Company will reimburse the Shareholder and each such director,
officer, underwriter and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon written information furnished
to the Company by the Shareholder expressly for use in the preparation
thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Shareholder or any such director, officer, underwriter or controlling
person and shall survive the transfer of Shares by the Shareholder.
(b) Indemnification by the Shareholder. To the extent permitted by law,
the Shareholder will, and hereby does, indemnify and hold harmless (in
the same manner and to the same extent as set forth in subdivision (a)
of this Section 6) each underwriter, each Person who controls such
underwriter within the meaning of the Securities Act, the Company,
each director of the Company, each officer of the Company and each
other Person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any statement or alleged statement
in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was
made in reliance upon written information furnished to the Company by
the Shareholder expressly for use in the preparation of such
registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, and with respect to any
violation by the Shareholder of the Securities Act or the Exchange
Act.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 6,
such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter
of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under the preceding
subdivisions of this Section 6, except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties
actually exists in respect of such claim, the indemnifying party shall
be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which 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.
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(▇) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by the Company and the Shareholder with
respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by this Section
6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
7. Reporting Requirements Under the Exchange Act. At all times when it is
legally required to do so, the Company shall keep effective its registration
under Section 12 of the Exchange Act, shall timely file such information,
documents and reports as the Commission may require or prescribe under Section
13 of the Exchange Act, and from and after the effective date of the first
registration statement filed by the Company under the Securities Act, the
Company shall timely file such information, documents and reports which a
corporation, partnership or other entity subject to Section 13 or 15(d)
(whichever is applicable) of the Exchange Act is required to file.
8. Notices. All notices required or permitted herein must be in writing and
shall be deemed to have been duly given the first business day following the
date of service if served personally, on the first business day following the
date of actual receipt if delivered by telecopier, telex or other similar
communication to the party or parties to whom notice is to be given, or on the
third business day after mailing if mailed to the party or parties to whom
notice is to be given by registered or certified mail, return receipt requested,
postage prepaid, to the Shareholder at the address set forth in the Subscription
Agreement, and to the Company at the address set forth below, or to such other
addresses as either party hereto may designate to the other by notice from time
to time for this purpose.
Rick's Cabaret International, Inc.
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. Entire Agreement. This Agreement contains and constitutes the entire
agreement between and among the parties with respect to the matters set forth
herein and supersedes all prior agreements and understandings between the
parties hereto relating to the subject matter hereof. There are no agreements,
understandings, restrictions, warranties or representations among the parties
relating to the subject matter hereof other than those set forth or referred to
herein. This instrument is not intended to have any legal effect whatsoever, or
to be a legally binding agreement or any evidence thereof, until it has been
signed by all parties hereto.
10. Binding Effect. This Agreement shall be binding on and enforceable by
the Shareholder and by the Company and its successors. No transferee of Shares
shall acquire any rights under this Agreement except with the written consent of
the Company, which may be withheld for any reason. In the event the Company is a
party to a merger or consolidation in a transaction in which the Shares are
converted into equity securities of another entity, then the Company shall cause
such other entity to assume the Company's obligations under this Agreement such
that this Agreement shall apply to the equity securities received by the
Shareholder in exchange for the Shares, unless such equity securities are, upon
receipt and without further action by the Shareholder, readily salable without
registration under the Securities Act.
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▇▇. Construction. This Agreement shall be construed, enforced and governed
in accordance with the laws of the State of Texas. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or neuter
gender thereof or to the plurals of each, as the identity of the person or
persons or the context may require. The descriptive headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision contained herein.
12. Invalidity. If any provision contained in this Agreement shall for any
reason be held to be invalid, illegal, void or unenforceable in any respect,
such provisions shall be deemed modified so as to constitute a provision
conforming as nearly as possible to such invalid, illegal, void or unenforceable
provisions while still remaining valid and enforceable, and the remaining terms
or provisions contained herein shall not be affected thereby.
13. Counterparts. This Agreement may be executed in any number of
Counterparts and by the parties hereto in separate 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.
14. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless agreed to in writing by both the
Company and the Shareholder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates shown below.
SHAREHOLDER: /s/
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Date
COMPANY: RICK'S CABARET INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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