Exibit 10.12
STOCKHOLDERS' AGREEMENT
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This STOCKHOLDERS' AGREEMENT (the "Agreement"), dated as of December 2,
1999, is among (a) Buffalo Wild Wings, Inc., a Minnesota corporation (the
"Company"), (b) GMN Investors II, L.P. ("GMN"), (c) Regent Capital Partners,
L.P. ("RCP"), (d) Carefree Capital Partners, Limited Partnership, a Wyoming
Limited Partnership ("CC", collectively with GMN and RCP, the "Investors") (e)
Xxxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxx (collectively, the "Existing
Stockholders"), and (f) each other Person who becomes a party to this Agreement
by executing an Instrument of Accession ("Instrument of Accession") in the form
of Schedule 1 hereto.
WHEREAS, the Company, the Investors and the Existing Stockholders wish to
set forth their relative rights with regard to election of the Company's Board
of Directors, the transfer of the Company's securities and certain other matters
concerning the Company's capital stock;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement, the following
terms shall have the meanings set forth below:
Affiliate. Affiliate shall mean, with respect to any Stockholder, any
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such Stockholder (or other specified Person) and
shall include (a) any Person who is a director or beneficial holder of at least
10% of the then outstanding capital stock (or other shares of beneficial
interest) of such Stockholder (or other specified Person) and Family Members of
any such Person, (b) any Person of which such Stockholder (or other specified
Person) or an Affiliate (as defined in clause (a) above) of such Stockholder (or
other specified Person) directly or indirectly, either beneficially owns at
least 10% of the then outstanding capital stock (or other shares of beneficial
interest) or constitutes at least a 10% equity participant, (c) any Person of
which an Affiliate (as defined in clause (a) above) of such Stockholder is a
partner, director, officer or executive employee, and (d) in the case of a
specified Person who is an individual, Family Members of such Person.
Capital Transaction. Capital Transaction shall mean any of the following:
(i) one or more mergers, consolidations, liquidations, sales of more than 50% of
the assets of the Company or other similar corporate actions pursuant to which
the Company or the holders of equity interests in the Company receive cash,
securities or other property; (ii) at least a majority of the voting securities
of the Company is sold; or (iii) a Qualified Public Offering.
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CC. See preamble.
Common Stock. Common Stock shall mean (a) the Company's common stock, par
value $.01 per share, and (b) any shares of any other class of capital stock of
the Company hereafter issued which is (i) not preferred as to dividends or
assets over any class of stock of the Company, (ii) not subject to redemption
pursuant to the terms thereof, or (iii) issued to the holders of shares of
Common Stock upon any reclassification thereof.
Company. See preamble.
Converted Common Shares. Converted Common Shares shall mean, collectively,
(a) shares of Common Stock issuable upon exercise of the conversion rights of
the Series A Preferred Stock in accordance with its terms, (b) any shares of
Common Stock into which such shares of Common Stock have been converted, (c) any
capital stock or other securities into which or for which such Common Stock
shall have been converted or exchanged pursuant to any recapitalization,
reorganization or merger of the Company, and (d) any shares of capital stock
issued with respect to the foregoing pursuant to a stock dividend or stock
split; provided that no Converted Common Shares which have been sold pursuant to
a Public Sale shall be considered to be outstanding Converted Common Shares or
Securities hereunder.
Determination Date. Determination Date has the meaning set forth in the
form of Warrant attached as Exhibit C to the Securities Purchase Agreement.
EBITDA. EBITDA shall mean for any period, an amount equal to the sum of (a)
the consolidated net income of the Company and its Subsidiaries during such
period determined in accordance with Generally Accepted Accounting Principles
consistently applied, but excluding therefrom all extraordinary items of income
or loss, plus (b) all amounts deducted in the computation thereof on account of
(i) interest expense, (ii) taxes, (iii) depreciation, and (iv) amortization;
provided that interest expense with respect to Indebtedness for Borrowed Money
incurred in connection with the acquisition of a restaurant and which is in
excess of Capital Expenditures permitted for such period under the Plan shall
not be added back to consolidated net income of the Company and its Subsidiaries
(for purposes of the calculation of Capital Expenditures, all Capital
Expenditures in connection with the opening of new restaurants for such period
shall be counted first).
Existing Stockholder. See preamble.
Existing Stockholder Securities. Existing Stockholder Securities shall mean
(a) the shares of Common Stock held by the Existing Stockholders on the date
hereof, (b) all other Securities purchased by or issued from time to time to the
Existing Stockholders, and (c) all shares of the Company's capital stock issued
with respect to such Securities by way of stock dividend or stock split or in
connection with any merger, consolidation, recapitalization or other
reorganization affecting the Company's capital stock. Existing
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Stockholder Securities will continue to be Existing Stockholder Securities in
the hands of any holder and each transferee thereof will succeed to the rights
and obligations of a holder of Existing Stockholder Securities hereunder,
provided that shares of Existing Stockholder Securities will cease to be
Existing Stockholder Securities when transferred (i) to the Company, (ii)
pursuant to a Public Sale or (iii) to an Investor.
Family Members. Family Members shall mean, as applied to any individual,
any parent, spouse, child, grandchildren, spouse of a child, and each trust
created for the benefit of one or more of such Persons and each custodian of a
property of one or more such Persons.
Family Transferee. Family Transferee shall mean any Family Member of a
Stockholder (i) to whom such Stockholder has transferred shares of Common Stock
pursuant to Section 2.1 and (ii) who has executed an Instrument of Accession.
Generally Accepted Accounting Principles. Generally Accepted Accounting
Principles shall mean accounting principles which are (a) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, in effect for the fiscal year of the Company and its
Subsidiaries ended December 27, 1998, (b) applied on a basis consistent with
prior periods, and (c) such that a certified public accountant would, insofar as
the use of accounting principles is pertinent, be in a position to deliver an
unqualified opinion as to financial statements in which such principles have
been properly applied.
GMN. See preamble.
Instrument of Accession. See preamble.
Investors. Those investors listed as such in the preamble so long as an
Investor holds Investor Securities and any other Person to whom an Investor
transfers Investor Securities pursuant to the terms hereof for so long as such
Person holds such Securities.
Investor Securities. Investor Securities shall mean (a) the Series A
Preferred Stock, the Converted Common Shares, the Warrants and the Warrant
Shares, (b) all other Securities purchased by or issued from time to time to
Investors and (c) all shares of the Company's capital stock issued with respect
to such Securities by way of stock dividend or stock split or in connection with
any merger, consolidation, recapitalization or other reorganization affecting
the Company's capital stock. Investor Securities will continue to be Investor
Securities in the hands of any holder and each transferee thereof will succeed
to the rights and obligations of a holder of Investor Securities hereunder,
provided that shares of Investor Securities will cease to be Investor Securities
when transferred (i) to the Company, (ii) pursuant to a Public Sale or (iii) to
an Existing Stockholder.
Investor Stockholder. Investor Stockholder shall mean an Investor for so
long as such Investor holds Investor Securities.
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Liquidity Event. Liquidity Event shall mean (i) the occurrence of a Capital
Transaction or (ii) the occurrence of any event or circumstance which requires
the Company to repay, repurchase, redeem or otherwise to retire any equity
security of the Company or which permits the holder of such equity security to
require any such repayment, repurchase, redemption or retirement.
Majority Holders. Majority Holders shall mean the holder or holders at the
relevant time of determination (excluding the Company) of 50.1% or more of the
sum of the number of (i) Warrant Shares and (ii) Converted Common Shares.
Management Stock Option Plan. Management Stock Option Plan shall mean the
Company's stock option plan in existence on the date hereof pursuant to which
the Company has the right to grant options or warrants to employees or
consultants of the Company for up to a maximum of 1,500,000 shares of Common
Stock.
Non-Transferring Stockholder. See Section 2.2.
Offer Notice. See Section 2.2.
Person. Person shall mean an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
Personal Representative. Personal Representative shall mean the successor
or legal representative (including without limitation, a guardian, executor,
administrator or conservator) of a dead or incompetent Stockholder.
Plan. Plan shall mean those certain financial projections attached as
Schedule 1.3 to the Securities Purchase Agreement and after the Company's fiscal
year ending December 2003, "Plan" shall mean the budget approved by the board of
directors of the Company for the relevant fiscal year of the Company; provided
that for purposes of the EBITDA projection for the Company's fiscal years ending
December 2000 and 2001, "Plan" shall mean those projections for those same
fiscal years set forth on page 10 of Schedule 1.3.
Public Sale. Public Sale shall mean any sale of Common Stock to the public
pursuant to a public offering registered under the Securities Act of 1933, as
amended, or to the public through a broker or market-maker pursuant to the
provisions of Rule 144 (or any successor rule) adopted under the Securities Act
of 1933, as amended.
Qualified Public Offering. Qualified Public Offering shall mean the
Company's underwritten public offering pursuant to an effective registration
statement under the Securities Act covering the offer and sale of shares of
Common Stock in which not less than $20,000,000 of gross proceeds from such
public offering are received by the Company for the account of the Company;
provided that in the case of a public offering
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underwritten by one or more of the investment banking firms listed on Schedule 2
hereto, the amount of gross proceeds for purposes of this definition shall be
$15,000,000.
RCP. See preamble.
Securities. Securities shall mean all outstanding shares of the Company's
capital stock or rights to purchase the Company's capital stock which have not
been sold in a Public Sale, including, without limitation, the Existing
Stockholder Securities and the Investor Securities.
Securities Purchase Agreement. Securities Purchase Agreement shall mean the
Securities Purchase Agreement of even date herewith between the Company and the
Investors.
Series A Preferred Stock. Series A Preferred Stock shall mean shares of the
Series A Preferred Stock, par value $.01, of the Company.
Stockholder Election Period. See Section 2.2.
Stockholders. Stockholders shall mean the Investor Stockholders, the
Existing Stockholders and any other Person who becomes a party to this Agreement
by executing an Instrument of Accession; provided that a Person shall cease to
be a Stockholder hereunder at such time as such Person ceases to own Securities.
Subsidiary. Subsidiary shall mean any corporation, association, trust, or
other business entity, of which the designated parent shall at any time own or
control directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding shares of capital stock (or
other shares of beneficial interest) entitled ordinarily to vote for the
election of such business entity's directors (or in the case of a business
entity that is not a corporation, for those Persons exercising functions similar
to directors of a corporation).
Third Party Sale. Third Party Sale shall mean a bona fide sale by any
Existing Stockholder of Securities to a third party that is not an Affiliate of
the selling Existing Stockholder or the Company, pursuant to a transaction that
is not a Public Sale.
Transfer. See Section 2.1.
Transferring Stockholder. See Section 2.2.
Warrant Shares. Warrant Shares shall mean, collectively, (a) Common Stock
issuable upon exercise of the Warrants in accordance with their terms, (b) any
shares of Common Stock into which such shares of Common Stock have been
converted, (c) any capital stock or other securities into which or for which
such Common Stock shall have been converted or exchanged pursuant to any
recapitalization, reorganization or merger of the Company, and (d) any shares of
capital stock issued with respect to the foregoing
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pursuant to a stock dividend or a stock split; provided that no Warrant Shares
which have been sold pursuant to a Public Sale shall be considered to be
outstanding Warrant Shares or Securities hereunder. For all purposes of this
Agreement, until the Determination Date, the number of shares of Common Stock
issuable upon exercise of the Warrants shall be deemed to be the maximum number
of shares issuable thereunder based upon the number of shares of all outstanding
equity of the Company on a fully diluted basis as of the date at issue including
in such number of shares the number of shares equal to the difference between
the 1,500,000 options authorized under the Management Stock Option Plan and the
number of options actually outstanding thereunder.
Warrants. Warrants shall mean the Common Stock Purchase Warrants of the
Company issued to the Investors pursuant to the Securities Purchase Agreement
and any other Common Stock Purchase Warrants transferred to any other holders
pursuant to Section 12 of the Securities Purchase Agreement; provided that no
Warrants which have been sold pursuant to a Public Sale shall be considered to
be outstanding Warrants or Securities hereunder. For all purposes of this
Agreement, until the Determination Date, the number of shares of Common Stock
issuable upon exercise of the Warrants shall be deemed to be the maximum number
of shares issuable thereunder based upon the number of shares of all outstanding
equity of the Company on a fully diluted basis as of the date at issue including
in such number of shares the number of shares equal to the difference between
the 1,500,000 options authorized under the Management Stock Option Plan and the
number of options actually outstanding thereunder.
Section 2. RESTRICTIONS ON TRANSFER OF SECURITIES.
2.1. Transfer of Securities. Subject to the provisions of Section 2.2
hereof, (a) no Existing Stockholder may sell, assign, pledge or otherwise
transfer (a "Transfer") any interest in any Securities, either voluntarily or
involuntarily, by operation of law or otherwise, except (i) to such Existing
Stockholder's Family Members, provided that such Existing Stockholder retains
voting control over the transferred Securities, (ii) to such Existing
Stockholder's Personal Representative, (iii) pursuant to a Third Party Sale
subject to the provisions of Sections 2.2 and 2.3 hereof, (iv) to an Affiliate
of such Existing Stockholder or (v) pursuant to a Public Sale; provided that, in
each case (other than clause (v) above where only clause (A) shall apply), (A)
no Event of Default under (and as defined in) the Securities Purchase Agreement
would occur as a result of any such transfer, (B) the restrictions contained in
this Section 2 will continue to be applicable to any transferee of Securities by
any Existing Stockholder pursuant to this Section 2.1, and (C) the transferee of
such Securities pursuant to clause (B) above shall have executed and delivered
an Instrument of Accession as a condition precedent to the transfer thereof.
2.2. First Right of Purchase. (a) Subject to the provisions of Section 2.1
hereof, any Existing Stockholder may Transfer any interest in any Existing
Stockholder Securities pursuant to a Third Party Sale in accordance with the
provisions of this Section 2.2 and Section 2.3. At least 45 days prior to any
Third Party Sale, the transferring Stockholder (the "Transferring Stockholder")
will deliver a written notice (the "Offer
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Notice") to the Company and to each of the other Stockholders (the
"Non-Transferring Stockholders"). The Offer Notice will disclose in reasonable
detail the proposed number of shares of Existing Stockholder Securities to be
transferred, the class or classes of such Existing Stockholder Securities, the
proposed price, terms and conditions of the Transfer and the identity of the
transferee. The Non-Transferring Stockholders may elect to purchase all (but not
less than all) of the Existing Stockholder Securities specified in the Offer
Notice at the price and on the terms specified therein by delivering written
notice of such election to the Transferring Stockholder and the Company within
15 days after the delivery of such Offer Notice (the "Stockholder Election
Period"). If one or more of the Non-Transferring Stockholders elect to purchase
all of such Existing Stockholder Securities, each Non-Transferring Stockholder
electing to purchase Securities will be entitled to purchase from the
Transferring Stockholder a pro rata portion (based upon the respective number of
shares of Securities then held by such Non-Transferring Stockholders (on a
fully-diluted basis)) of the securities proposed to be transferred. If none of
the Non-Transferring Stockholders elects to purchase all of the Existing
Stockholder Securities being offered and the Company does not offer to purchase
such Securities within the five (5) day period after expiration of the
Stockholder Election Period, the Transferring Stockholder may, within 90 days
after the expiration of the Stockholder Election Period, complete the Third
Party Sale of the Existing Stockholder Securities specified in the Offer Notice
at a price and on terms no more favorable to the transferees than the price and
terms offered to the Non-Transferring Stockholders in the Offer Notice, provided
that no such Third Party Sale may be completed except in compliance with Section
2.3 and unless each of such transferees shall have executed and delivered an
Instrument of Accession as a condition precedent to the transfer thereof. If the
Transferring Stockholder fails to consummate such Third Party Sale within the 90
day period after the expiration of the Stockholder Election Period, any
subsequent proposed Transfer of the Existing Stockholder Securities shall be
once again subject to the provisions of this Section 2.2.
2.3. Participation Rights. In the event that the Non-Transferring
Stockholders fail to purchase the Existing Stockholder Securities specified in
the Offer Notice, the Stockholders may elect to participate in the contemplated
Third Party Sale by delivering written notice to the Transferring Stockholder
within 15 days after expiration of the Stockholder Election Period. If the
Stockholders elect to participate in such Third Party Sale, each of the
Transferring Stockholders and the electing Stockholders will be entitled to sell
in the contemplated Third Party Sale, at the same price and on the same terms, a
number of shares of Securities proposed to be sold equal to the product of (i)
the fraction, the numerator of which is the number of shares of Securities (on a
fully-diluted basis) held by such Person, and the denominator of which is the
aggregate number of shares of Securities (on a fully-diluted basis) owned by the
Transferring Stockholder and the electing Stockholders, multiplied by (ii) the
number of shares of Securities (on a fully-diluted basis) to be sold in the
contemplated Third Party Sale.
For example, if the notice from the Transferring Stockholder contemplated a
sale of 100 shares of Securities by the Transferring Stockholder and the
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Transferring Stockholder at such time owns 300 shares of Securities, and if
a Stockholder elects to participate in such sale and such Stockholder owns
200 shares of Securities (on a fully-diluted basis), such Transferring
Stockholder would be entitled to sell 60 shares (300/500 x 100 shares) and
such Stockholder would be entitled to sell 40 shares (200/500 x 100
shares).
The Transferring Stockholder will use its best efforts to obtain the agreement
of the prospective transferee(s) to the participation of the electing
Stockholders in any contemplated Third Party Sale and will not transfer any of
its Securities to the prospective transferee(s) if the prospective transferee(s)
declines to allow the participation of the electing Stockholders on the terms
specified herein.
2.4 Transfers of Securities in Breach of this Agreement. In the event of
any Transfer of Existing Stockholder Securities in breach of this Agreement,
commencing immediately upon the date of such attempted Transfer (i) such
Transfer shall be void and of no effect, (ii) no dividend of any kind or any
distribution pursuant to any liquidation, redemption or otherwise shall be paid
by the Company to the purported transferee in respect of such Existing
Stockholder Securities (all such rights to payment by the transferring
Stockholder and/or the purported transferee being deemed waived), (iii) the
voting rights of such Existing Stockholder Securities, if any, shall terminate,
and (iv) neither the transferring Stockholder nor the purported transferee shall
be entitled to exercise any rights with respect to such Existing Stockholder
Securities until such Transfer in breach of this Agreement has been rescinded.
Section 3. BOARD OF DIRECTORS.
3.1 Board of Directors; Voting Agreements. This Section 3 shall be
applicable until the earlier of (i) the later of the date on which less than 10%
of the Series A Preferred Shares (as defined in the Securities Purchase
Agreement) are outstanding and the date on which the Investors (as defined in
the Securities Purchase Agreement) own less than 50% of the Securities (as
defined in the Securities Purchase Agreement) and (ii) the date as of which the
Company has not dropped below $200,000,000 in market capitalization at any time
during the immediately preceding 12 months.
(a) In any and all elections of directors of the Company (whether at a
meeting or by written consent in lieu of a meeting), each Stockholder, to the
extent that such Stockholder has voting rights, shall vote, or cause to be
voted, or cause such Stockholder's designees as directors to vote, all
Securities, owned by such Stockholder or over which such Stockholder has voting
control, so as to fix the number of directors of such Company at eleven (11)
until the next annual meeting of the shareholders of the Company commencing with
which meeting the number of directors shall be fixed at not more than nine (9),
and to nominate and elect to the Board of Directors of the Company (i) one (1)
individual designated by GMN, so long as GMN or its Affiliates hold any Investor
Securities; (ii) one (1) individual designated by RCP, so long as RCP or its
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Affiliates hold any Investor Securities; and (iii) one (1) individual designated
by CC, so long as CC or its Affiliates hold any Investor Securities.
(b) If the Company's EBITDA for any twelve-month period, calculated on a
rolling basis, is less than 50% of the EBITDA projected in the Plan for the same
twelve-month period, the Majority Holders shall have the right to appoint,
collectively, two additional members of the Board of Directors of the Company.
If (i) a Liquidity Event has not occurred by the sixth anniversary date of this
Agreement, or (ii) the Company has EBITDA in any twelve-month period of less
than $3,000,000, the Majority Holders shall have the right to appoint additional
directors to the Board of Directors of the Company sufficient to obtain voting
control of such Board.
(c) If GMN, RCP or CC, as applicable, chooses not to designate a director
or directors of the Company as provided in Section 3.1(a) or (b) above, the
number of directors of such Company shall be reduced accordingly until such time
as GMN, RCP or CC, as applicable, exercise their rights as provided above, at
which time the number of directors of such Company shall be increased
accordingly.
(d) If any vacancy shall occur in the Board of Directors of the Company as
a result of death, disability, resignation or any other termination of a
director designated in accordance with Section 3.1(a) or (b) above, the
replacement for such vacating director shall be designated by the Person or
Persons who, pursuant to Section 3.1(a) or (b) above, originally designated such
vacating director. Each Person or Persons entitled to designate a director or a
replacement for a director pursuant to this Section 3 shall also be entitled to
designate the removal of such director with or without cause. Each Stockholder
agrees to vote, or to cause to be voted, all voting securities owned by such
Stockholder, or over which such Stockholder has voting control, in order to
comply with this Section 3.1.
3.2 Proxy. Each Stockholder hereby grants to the Company, as applicable,
an irrevocable proxy, coupled with an interest, to vote all voting Securities
held by such Person to the extent necessary to carry out the provisions of this
Section 3 in the event of any breach by such Person of its obligations under the
voting agreement contained herein.
Section 4. LIMITED FIRST REFUSAL RIGHTS.
4.1. Right of First Refusal. Except for the issuance of securities of the
Company (or securities convertible into or containing options or rights to
acquire securities of the Company) (i) pursuant to a Public Sale, (ii) pursuant
to the Management Stock Option Plan, (iii) pursuant to the exercise of the
Warrants, or (iv) upon conversion of the Series A Preferred Stock, if the
Company authorizes the issuance and sale of any shares of any class of capital
stock or other equity interests or any securities convertible into or containing
options or rights to acquire any shares of any class of capital stock or other
equity interests (other than as a dividend on the outstanding Common Stock), the
Company will first offer to sell to each Stockholder a pro rata portion of such
securities equal to the percentage determined by dividing (i) the sum of (A) the
number of shares of
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Common Stock held by such Stockholder plus (B) the number of shares of Common
Stock then purchasable by such Stockholder upon the exercise of all outstanding
options and warrants and the conversion of all outstanding convertible
securities held by such Stockholder, by (ii) the sum of (A) the number of shares
of Common Stock then outstanding plus (B) the number of shares of Common Stock
then purchasable upon exercise of all outstanding options and warrants and the
conversion of all outstanding convertible securities. Each Stockholder will be
entitled to purchase all or part of such securities at the same price and on the
same terms as such securities are to be offered to any other Persons.
4.2. Stockholder's Exercise of Right. Each Stockholder entitled to purchase
securities under this Section 4 must exercise such Stockholder's purchase rights
hereunder within 30 days after receipt of written notice from the Company
describing in reasonable detail the securities being offered, the purchase price
thereof, the payment terms and such Stockholder's percentage allotment.
4.3. Company's Exercise of Right. Upon the expiration of the offering
period described above, the Company will be free to sell such securities which
the Stockholders entitled to purchase such securities have not elected to
purchase during the 90 days following such expiration on terms and conditions no
more favorable to the purchasers thereof, in the aggregate, than those offered
to such Stockholders. Any securities offered or sold by the Company after such
90-day period must be reoffered to the Stockholders entitled to purchase such
stock or securities pursuant to the terms of this Section 4.
Section 5. ADDITIONAL LEGEND. So long as any Securities are subject to the
provisions hereof, all certificates or instruments representing Securities will
have imprinted on them the following legend:
The shares represented by this certificate are subject to the terms of a
certain Stockholders' Agreement, dated as of December 2, 1999, among the
issuer of this certificate and certain investors. The Stockholders'
Agreement contains certain restrictive provisions relating to the voting
and transfer of shares of the stock represented hereby. A copy of the
Stockholders' Agreement is on file at the Company's principal offices. Upon
written request to the Company's Secretary, a copy of the Stockholders'
Agreement will be provided without charge to appropriately interested
persons.
Section 6. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
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Section 7. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
Section 8. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to
the benefit of and be enforceable by the Company and the Stockholders and their
respective successors and assigns.
Section 9. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
Section 10. REMEDIES. The Stockholders will be entitled to enforce their
rights under this Agreement specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any Stockholder may
in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement. In the
event of any dispute involving the terms of this Agreement, the prevailing party
shall be entitled to collect reasonable fees and expenses incurred by the
prevailing party in connection with such dispute from the other parties to such
dispute.
Section 11. NOTICES. Any notice provided for in this Agreement will be in
writing and will be deemed properly delivered if either personally delivered or
sent by telecopier, overnight courier or mailed certified or registered mail,
return receipt requested, postage prepaid to the recipient (a) if to any
Stockholder, at the address listed for such Stockholder in the stock records of
the Company and (b) if to the Company, to Buffalo Wild Wings, Inc., 1919
Interchange Tower, 000 X. Xxxxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
President. Any such notice shall be effective (i) if delivered personally or by
telecopier, when received, (ii) if sent by overnight courier, when receipted
for, and (iii) if mailed, 5 days after being mailed as described above. The
Company agrees to make available to each Stockholder upon request an address
list of all Stockholders to ensure correct delivery of all notices hereunder.
Section 12. AMENDMENT AND WAIVER. No modification, amendment or waiver of
any provision of this Agreement will be effective against either of the Company
or the Stockholders unless such modification, amendment or waiver is approved in
writing by the Majority Holders and the holders of at least 50% of the total
number of then outstanding shares of Existing Stockholder Securities hereunder.
The failure of any party to enforce any of the provisions of this Agreement will
in no way be construed as a waiver of such
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provisions and will not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
Section 13. TERMINATION. Sections 2 and 4 of this Agreement will terminate
upon the completion of a Qualified Public Offering. Section 3 of this Agreement
shall terminate as set forth therein. Upon the termination of Sections 2, 3 and
4, this Agreement shall terminate in its entirety.
Section 14. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
THE STATE OF MINNESOTA.
Section 15. CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO HEREBY
AGREES TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS IN AND OF THE
STATES OF MINNESOTA AND NEW YORK OVER ANY ACTION OR PROCEEDING EXISTING UNDER OR
RELATING TO THIS AGREEMENT, AND CONSENTS THAT SERVICE OF PROCESS WITH RESPECT TO
ALL COURTS IN AND OF THE STATES OF MINNESOTA AND NEW YORK MAY BE MADE BY
REGISTERED MAIL TO IT AT THE ADDRESS SET FORTH PURSUANT TO SECTION 11 HEREOF.
Section 16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY SUIT, ACTION OR
PROCEEDING EXISTING UNDER OR RELATING TO THIS AGREEMENT.
Section 17. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement on the day and year first above written.
BUFFALO WILD WINGS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
INVESTORS:
GMN INVESTORS II, L.P.
By: GMN INVESTORS LLC
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
President
REGENT CAPITAL PARTNERS, L.P.
By: REGENT CAPITAL HOLDINGS, II,L.P.,
its general partner
By: REGENT CAPITAL HOLDINGS, INC.,
its general partner
By: /s/ J. Xxxxxx Xxxxxxx
------------------------------
J. Xxxxxx Xxxxxxx
Managing Director
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CAREFREE CAPITAL PARTNERS,
LIMITED PARTNERSHIP, A WYOMING
LIMITED PARTNERSHIP
By: CAREFREE CAPITAL, INC.,
its general partner
By: /s/Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
EXISTING STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
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Schedule 1
-------- -
Instrument of Accession
---------- -- ---------
The undersigned, ____________________, in order to become the owner or
holder of [a warrant/an option to purchase] ________ shares of Common Stock,
[$.01] par value per share (the "Shares") of Buffalo Wild Wings, Inc., a
Minnesota corporation, hereby agrees to become an [Investor Stockholder]
[Existing Stockholder] party to that certain Stockholders' Agreement, dated as
of December 2, 1999 (the "Stockholders' Agreement"), a copy of which is attached
hereto. The undersigned acknowledges that the Shares constitute shares of
[Existing Stockholder Securities] [Investor Securities] under and as defined in
the Stockholders' Agreement. This Instrument of Accession shall become a part of
such Stockholders' Agreement.
Executed as of the date set forth below under the laws of the State of
Minnesota.
Signature:
-----------------------------
Address:
-----------------------------
-----------------------------
-----------------------------
Date:
-----------------------------
Accepted:
BUFFALO WILD WINGS, INC.
By:
-------------------------------------
Date:
-----------------------------------
Schedule 2
-------- -
Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx & Xxxxx
Deutche Bank Alex. Xxxxx, Inc.
US Bancorp Xxxxx Xxxxxxx
CIBC World Markets
Credit Suisse First Boston
Xxxx Xxxxxxxx Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx, Inc.
The Bear Xxxxxxx Companies, Inc.
The Xxxxxxx Xxxxx Group, Inc.
Xxxxxx Brothers Holdings, Inc.
McDonald Investments
Xxxxxxx Xxxxx & Company, Inc.
Xxxxx Xxxxxx Group, Inc.
Xxxxxxx Xxxxx Barney Holdings, Inc.
XX Xxxxx Securities Corp.
Xxxxxx Xxxxxx Partners, LLC
Xxxxx Xxxxx Xxxxxx & Company, LLC
Warburg Dillon Xxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
Friedman, Billings, Xxxxxx Group, Inc.
Prudential
Banc of America Securities, LLC.
