AMENDMENT TO
INVESTORS’ RIGHTS AGREEMENT
STANDSTILL AND EXTENSION
AGREEMENT
This Amendment to Investors’ Rights
Agreement Standstill and Extension Agreement
(“Agreement”) is made as of September 11, 2008 (the
“Effective Date”), by and between Rubio’s
Restaurants, Inc., a Delaware corporation,
(“Rubio’s” or the “Company”), and
Rosewood Capital L.P., a Delaware limited partnership (the
“Investor”).
RECITALS
A. Rubio’s and the Investor are parties to
that certain Amended and Restated Investors’ Rights
Agreement, dated as of November 19, 1997, as amended on December
31, 1997 and in May 1998 (the “Rights Agreement”),
wherein Rubio’s granted to the Investor certain registration
rights.
B. On May 7, 2007, Rubio's and the Investor entered
into an Investors' Rights Agreement Standstill and Extension
Agreement which provided, among other things, for an extension of
the expiration date applicable to the Investor's registration
rights and modified the registration rights originally granted
under the Rights Agreement (the "Original Extension
Agreement").
C. The Original Extension Agreement superseded the
Investors’ Rights Agreement Standstill and Extension
Agreement, dated March 12, 2004, and the Investors’ Rights
Agreement Standstill and Extension Agreement, dated July 28,
2005.
D. Given the current state of market conditions,
the trading range of Rubio’s common stock and the current
operating performance of the Company, the Investor desires to
obtain a further extension of, and modification of its registration
rights.
E. The Company is willing to grant to the Investor
a further extension of its registration rights through December 31,
2010 in exchange for the Investor agreeing not to exercise any
demand registration rights on or before December 31,
2008.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as
follows:
1.
Extension of Registration
Rights . Beginning on the
Effective Date and extending through December 31, 2010,
Rubio’s hereby grants to the Investor the same rights, if
any, held by the Investor as of the Effective Date under Section
1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12 and 1.14 of the
Rights Agreement, as amended by the Original Extension Agreement,
provided, that in the event that the Company exercises its right to
defer the filing of a Form S-3 registration statement pursuant to
Section 1.12(b)(3) or to suspend the use of a Form S-3 registration
statement pursuant to Section 1.12(d) of the Rights Agreement, the
Investor’s rights shall be e
