Exhibit
10.9
INVESTORS’ RIGHTS
AGREEMENT
STANDSTILL AND EXTENSION
AGREEMENT
This Investors’ Rights Agreement
Standstill and Extension Agreement (“Agreement”) is
made as of May 7, 2007 (the “Effective Date”), by and
between Rubio’s Restaurants, Inc., a Delaware corporation,
(“Rubio’s” or the “Company”), and
Ralph Rubio (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 July 28, 2005, the parties hereto entered
into an Investors’ Rights Agreement Standstill and Extension
Agreement (the “2005 Extension Agreement”) which
provided, among other things, for an extension of the expiration
date applicable to the Investor’s registration rights and
superseded an Investors’ Rights Agreement Standstill and
Extension Agreement dated March 12, 2004 (collectively, with the
2005 Extension Agreement the “Original Extension
Agreements”).
C. 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.
D. The Company is willing to grant to Investor a
further extension of its registration rights through June 30, 2009
and a modification of such registration rights in exchange for the
Investor agreeing not to exercise any demand registration rights on
or before June 30, 2007.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as
follows:
1. Amendments to Rights Agreement
.
(a) Section 1.4(a) of the Rights Agreement be
deleted and replaced with the following:
“(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its
best 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 up to one hundred eighty (180)
days.”
(b) Clauses (4), (5) and (6) of Section 1.12 (b) of
the Rights Agreement be deleted and replaced with the
following:
“(4) if the Company has already effected
four (4) registrations on Form S-3 pursuant to this Section 1.12
and the Holder is eligible to resale its Registrable Securities
pursuant to Rule 144(k) of the Act.; or (5) in any particular
jurisdiction in which the Company would be required to qualify to
do business.”
(c) The following shall be added to Section 1.12 as
new Section 1.12(d):
“(d) If the Company’s Board of Directors
determines that it would be detrimental to the Company and its
stockholders for resales of Registrable Securities to be made
pursuant to an effective Form S-3 registration statement due to the
existence of a material event or development or potential material
event or development involving the Company which the Company would
be obligated to disclose in the registration statement (or in
filings or documents incorporated by reference in such registration
statement), which disclosure would be premature or otherwise
inadvisable at such time or which the Board of Directors believes
would have a material adverse effect on the Company and its
stockholders or would make the successful consummation by the
Company of a material transaction significantly less likely, the
Company will have the right to suspend the use of the registration
statement for a period of not more than ninety (90) days, provided,
however, that the Company may not exercise its right to suspend a
registration statement under this Section 1.12(d) more than twice
in any twelve (12)-month period. The Company will promptly notify
the Holders of any decision by its Board of Directors to suspend a
registration statement pursuant to this Section
1.12(d).”
(d)
Section 1.16(a) of the Rights
Agreement be deleted and replaced with the following:
“(a) The right of any Holder to request registration
or inclusion in registration pursuant
