AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "Agreement")
dated as of January 18, 2001, by and between New World Coffee - Manhattan Bagel,
Inc., a Delaware corporation (the "Company") and the holders of certain warrants
listed on Schedule I hereto (the "Stockholders"), amending and restating the
Registration Rights Agreement dated as of August 11, 2000 (the "Initial
Registration Rights Agreement"), by and between the Company, BET Associates,
L.P., and Brookwood New World Investors, LLC (the "Initial Stockholders").
BACKGROUND
On August 11, 2000, the Company and the Initial Stockholders entered into
the Series D Preferred Stock and Warrant Purchase Agreement (the "Series D
Purchase Agreement"), pursuant to which, among other things, the Initial
Stockholders agreed to purchase up to 16,216.216 shares of the Company's Series
D Preferred Stock at a purchase price of $925.00 per share (the "Series D
Shares") and the Company delivered warrants in the form attached to the Series D
Purchase Agreement and agreed to issue in the future certain additional Warrants
in similar form (collectively, the "Series D Warrants"). On the date hereof, the
Company and certain purchasers of the Series F Preferred Stock (the "New
Stockholders", and together with the Initial Stockholder, the "Stockholders")
entered into the Series F Preferred Stock and Warrant Purchase Agreement (the
"Series F Purchase Agreement", pursuant to which, among other things, the New
Stockholders agreed to purchase up to 20,000 shares of Series F Preferred Stock
(the "Shares") at a purchase price of $1,000.00 per share and the Company
delivered warrants in the form attached to the Series F Purchase Agreement and
has agreed to issue in the future certain Warrants in similar form
(collectively, the "Series F Warrants"). The Initial Stockholders have entered
into an Exchange Agreement dated as of January 18, 2001 (the "Exchange
Agreement") and pursuant to such Exchange Agreement, such Initial Stockholders
have agreed to surrender the Series D Shares (plus all accrued and unpaid
paid-in-kind dividends thereon) and the Series D Warrants in exchange for
16,398.33 shares of Series F Preferred Stock (the "Shares") and new warrants in
the form attached to the Exchange Agreement (collectively, the "Exchange
Warrants", and together with the Series F Warrants, the "Warrants"). Capitalized
terms used in this Agreement and not otherwise defined in this Agreement shall
have the meanings given to them in the Series F Purchase Agreement. As a
material term of the Series F Purchase Agreement, the Company has agreed to
grant to the New Stockholders certain registration rights with respect to the
Registrable Securities and the Initial Stockholders have agreed to amend and
restate the Initial Registration Rights Agreement as hereinafter provided.
Therefore, the parties agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(b) The term "Act" means the Securities Act of 1933, as amended.
(c) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee of Registrable Securities in
accordance with Section 1.9 of this Agreement.
(d) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement.
(e) The term "Registrable Securities" means the shares of Common Stock
issued or issuable (i) upon exercise of the Warrants; and (ii) any securities of
the Company issued or issuable in exchange for, or in replacement of the Common
Stock, excluding shares of Common Stock which may be immediately sold under Rule
144.
(f) The term "SEC" means the Securities and Exchange Commission.
1.2 DEMAND REGISTRATION.
(a) If the Company receives at any time, a written request from the Holders
of a majority of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the Act covering
the registration of at least twenty-five percent (25%) of the Registrable
Securities then outstanding, then the Company shall:
(i) within 10 days of the receipt thereof, give written notice of such
request to all Holders;
(ii) use all reasonable efforts to file as soon as practicable, and in any
event within 60 days of the receipt of such request, a registration statement
for registration under the Act of all Registrable Securities which the Holders
request to be registered, subject to the limitations of subsection 1.2(b); and
(iii) use all reasonable efforts to cause such registration statement to
become effective.
(b) If the Initiating Holders intend to distribute Registrable Securities
by means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to subsection 1.2(a), and the Company shall include such
information in the written notice referred to in subsection 1.2(a). The
underwriter will be selected by the Initiating Holders and shall be an
underwriter of regional or national standing reasonably acceptable to the
Company. In such event, the right of any Holder to include Registrable
Securities in the registration shall be conditioned upon such Holder's
participation in the underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting (unless otherwise mutually agreed by a majority
in interest of the Initiating Holders and such Holder). All Holders proposing to
distribute their securities through the underwriting shall (together with the
Company as provided in subsection 1.4(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant to this subsection, and the number of
shares of Registrable Securities that may be included in the underwriting shall
be allocated among all Holders, including the Initiating Holders, in proportion
(as nearly as practicable) to the amount of Registrable Securities of the
Company owned by each Holder; provided, however, that the number of shares of
Registrable Securities to be included in the underwriting shall not be reduced
unless all other securities are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company furnishes to Initiating
Holders a certificate signed by the Chief Executive Officer of the Company
stating that the Company is engaged in an offering for itself or others or that
in the good faith judgment of the Board of Directors of the Company, it would be
detrimental to the Company for a registration statement to be filed and it is
therefore necessary to defer the filing of the registration statement, the
Company shall have the right to defer taking action with respect to the filing
for a period of not more than 120 days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 1.2 (i) after
the Company has effected two registrations pursuant to this Section 1.2 and such
registrations have been declared or ordered effective or (ii) if such demand
registration would then be filed within six months of the initial filing of an
earlier demand registration under this Section 1.2 or a registration under
Section 1.9.
1.3 PIGGYBACK REGISTRATION.
If the Company proposes to register (including for this purpose a
registration effected by the Company for stockholder other than the Holders) any
of its stock under the Act in connection with the public offering of such
securities solely for cash (other than a registration on Form S-4 or Form S-8 or
successors thereto or on any other form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within 20 days after mailing of such notice
by the Company, the Company shall, subject to the provisions of Section
1.4,cause to be registered under the Act all of the Registrable Securities that
each such Holder has requested Registrable Securities to be registered. In the
event that the Company decides, for any reason, not to complete the registration
of shares of common stock other than the Registrable Securities, or in the event
that inclusion of the Registrable Securities would in the opinion of the
managing underwriter for the offering (or the Company if there is no
underwriter), impair an offering by the Company or its stockholders for whom the
registration statement is filed, the Company shall have no obligation under this
Section 1.3 to register, or continue with the registration of, the Registrable
Securities.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use reasonable efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to 120 days or until the
distribution contemplated in the Registration Statement has been completed,
whichever is earlier; provided, however, that the 120-day period shall be
extended for a period of time equal to the period the Holder is prohibited from
selling any securities included in such registration pursuant to Section 1.10
hereof or the terms of any lockup agreement entered into at the request of the
Company or an underwriter.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use reasonable efforts to register and qualify the securities covered
by the registration statement under other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders; provided that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act or the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all Registrable Securities registered pursuant to this Agreement
to be listed on each securities exchange on which similar securities issued by
the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant to this Agreement and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of the
registration.
(i) Use reasonable efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement, on
the date that the Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company, in form and substance as is
customarily given by counsel to underwriters in an underwritten public offering,
and (ii) a letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering.
1.5 EXPENSES OF REGISTRATION. The Company shall bear and pay all expenses
incurred in connection with any registration, filing or qualification of
Registrable Securities with respect to the registrations pursuant to Sections
1.2 or 1.3 for each Holder, including (without limitation) all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the fees and disbursements of counsel for the Company
and the reasonable fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not be
required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company and such other persons for whom the registration
statement was filed. If the total amount of securities, including Registrable
Securities, to be included in such underwriting exceeds the amount of
securities, other than the securities to be sold by the Company, that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in the
underwriting only that number of Registrable Securities, if any, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the Registrable Securities so included to be apportioned pro
rata among the selling stockholders having piggyback registration rights
according to the total amount of Registrable Securities entitled to be included
therein owned by each selling stockholder of Registrable Securities or in such
other proportions as shall mutually be agreed to by such selling stockholder of
Registrable Securities).
1.7 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based (i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or material fact necessary to make the statements
therein not misleading; and the Company will pay to each such Holder,
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action, subject to the limitations of
Section 1.7(c) below; provided, however, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon written information furnished expressly for use in connection with such
registration by or for any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the Act, any underwriter and its officers, and directors,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon written information furnished
by or for such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection, in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel reasonably satisfactory to the parties;
provided, however, than an indemnified party (together with all other
indemnified parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section.
(d) If the indemnification provided for in this Section is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) The obligations of the Company and Holders under this Section shall
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144, the Company agrees to use
reasonable efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, upon request (i) a written statement by the Company stating whether
it has complied with the reporting requirements of Rule 144, the Act and the
1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, unless
available on ▇▇▇▇▇ and (iii) such other information as may be reasonably
requested in availing any Holder of any other rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
1.9 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.9:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of
the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public (net of any underwriters' discounts or commissions) of less than
$1,000,000,
(iii) if the Company shall furnish to the Holders a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such Form S-3 Registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Form S-3 registration statement for a period of not more than one hundred
twenty (120) days after receipt of the request of the Holder or Holders under
this Section 1.9; provided, however, that the Company shall not utilize this
right more than once in any twelve (12) month period;
(iv) if the Company has, within the six (6) month period preceding the date
of such request, already effected one (1) registration on Form S-3 for the
Holders pursuant to this Section 1.9; or
(v) in any particular jurisdiction in which the Company would be required
to qualify to do business or to execute a general consent to service of process
in effecting such registration, qualification or compliance.
Subject to the foregoing, the Company shall file a registration statement
covering the Registrable Securities and other securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holders. All expenses incurred in connection with a registration requested
pursuant to Section 1.9 (other than underwriting discounts and commissions and
fees and disbursements of counsel for the Holders), including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and counsel for the Company, shall be borne by the Company. Registrations
effected pursuant to this Section 1.9 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by a Holder, provided: (a) the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement; (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act and the Purchase
Agreement; and (d) the Company gives its prior written consent, such consent not
to be unreasonably withheld provided, however, that no consent shall be required
for the transfer of such rights as follows: (i) by BET Associates L.P. to ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, any entity where a majority of the capital stock or
other equity interest is held by either Mr. Toll or ▇▇. ▇▇▇▇▇▇▇▇▇▇, the
irrespective heirs, and any trust formed for the benefit of their heirs; (ii) by
Brookwood New World Investors LLC to (A) its members, (B) the members of its
managing member, and (C) the members, partners or shareholders of any of the
managing member's members, which, as to clause (C), shall not exceed 20
transferees; and (iii) by any ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. entity. The Company agrees
that it will consent to assignments to trusts created by the Stockholder for
estate planning purposes. The Company is not required to consent to any transfer
of registration rights to securities which are then saleable under Rule 144.
1.11 LOCK-UP. In connection with any underwritten public offering by the
Company, the Stockholder agrees, if requested, to execute a lock-up letter
addressed to the managing underwriter in customary form agreeing not to sell or
otherwise dispose of the Registrable Securities owned by the Stockholder (other
than any that may be included in the offering) for a period not exceeding 180
days.
2. MISCELLANEOUS.
2.1 INSPECTION, ETC. (a) The Company shall, upon reasonable prior notice to
the Company and during normal business hours, permit authorized representative
of any Stockholder to visit and inspect any of the properties of the Company,
including its books of account, and to discuss its affairs, finances and
accounts with its officers and independent accountants, all at reasonable times
and at such Stockholder's expense; provided that no action requested under this
Section 2.1 shall unreasonably interfere with the normal business operations of
the Company.
(b) Not later than the beginning of each fiscal year, the Company shall
prepare and deliver to each Stockholder a copy of the Company's operating plan
for such fiscal year of the Company.
2.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
termsand conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Registrable Securities). Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or the irrespective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
2.3 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
hereunder shall terminate with respect to each holder of Registrable Securities
at such time as all shares of Registrable Securities held by such holder of
Registrable Securities may immediately be sold at one time under Rule 144 of the
1934 Act in a single transaction.
2.4 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of New York, without regard to choice of law provisions.
2.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.6 NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in the manner and to the addresses set forth
in the Purchase Agreement.
2.7 EXPENSES. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended, and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this Section shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
2.9 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provisions were so excluded and shall be enforceable with its terms.
2.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ AND IRREVOCABLY
AGREE THAT, SUBJECT TO THE ELECTION, ALL ACTIONS OR PROCEEDINGS RELATING TO THIS
AGREEMENT OR THE RELATED AGREEMENTS MAY BE LITIGATED IN SUCH COURTS. THE PARTIES
ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE
ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY (SUBJECT TO ANY APPEAL AVAILABLE WITH RESPECT TO SUCH
JUDGMENT) IN CONNECTION WITH THIS AGREEMENT OR THE NOTES. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE PARTIES TO BRING PROCEEDINGS OR OBTAIN OR ENFORCE
JUDGMENTS AGAINST EACH OTHER IN THE COURTS OF ANY OTHER JURISDICTION.
2.11 WAIVER OF JURY TRIAL.
THE HOLDER AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE RELATED AGREEMENTS OR ANY DEALINGS AMONG THEM RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR TO THE NOTES OR THE WARRANTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
2.12 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter of this agreement
[SIGNATURE PAGE FOLLOWS]
The parties have executed this Amended and Restated Registration Rights
Agreement as of the date first above written.
NEW WORLD COFFEE - MANHATTAN BAGEL, INC.
By:/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
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R. ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ III, L.P.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
BET ASSOCIATES, L.P.
By: BRU Holding Co., LLC
Its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title:
BROOKWOOD NEW WORLD INVESTORS LLC
By: Brookwood New World Co., LLC,
Its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: