Exhibit 10.1
SECOND AMENDMENT TO
INVESTORS’ RIGHTS AGREEMENT
STANDSTILL AND EXTENSION
AGREEMENT
This Second Amendment to Investors’ Rights
Agreement Standstill and Extension Agreement
(“Agreement”) is made as of July 29, 2009 (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 “Original
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, as amended by the Amendment to Investors' Rights
Agreement Standstill and Extension Agreement dated September 11,
2008, which provides, 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 (collectively, 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Original Extension Agreement superseded the Investors’ Rights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, 2011 in exchange
for the Investor agreeing not to exercise any demand registration
rights on or before December 31, 2009.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as
follows:
1.
Extension of Registration Rights . Beginning on
the Effective Date and extending through December 31, 2011,
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 (the “Rights 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) o
