EXHIBIT 10.10
AMENDED AND RESTATED STOCK RESTRICTION AGREEMENT
This Amended and Restated Stock Restriction Agreement (the "Agreement") is
made and entered into as of November 19, 1997, by and among Xxxxx'x Restaurants,
Inc., a Delaware corporation with its principal office at 0000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Company"), the holders of shares of
the Company's Common Stock and Series A Preferred Stock listed on SCHEDULE A
hereto (the "Stockholders") and the holders of the Company's Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock (the "Investors").
RECITALS
A. The Company and the Stockholders are parties to that certain Stock
Restriction Agreement dated February 1, 1995, as amended on March 28, 1996 (the
"Prior Agreement"), pursuant to which certain restrictions were placed on the
transferability of the Stockholders' shares of capital stock of the Company.
B. Pursuant to that certain Series D Preferred Stock Purchase Agreement
of even date herewith by and among the Company and certain of the Investors (the
"Series D Agreement"), certain of the Investors are purchasing an aggregate of
up to 1,389,943 shares of the Company's Series D Preferred Stock (the "Series D
Financing").
C. In order to induce the Series D Investors to purchase the Series D
Preferred Stock, the Company and the Stockholders desire amend and restate the
Prior Agreement by entering into this Agreement, the execution of which is a
condition precedent to the closing of the Series D Financing.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Series D Agreement, the parties mutually agree as follows:
1. RESTRICTIONS ON TRANSFER. Except as permitted by the terms of this
Agreement, a Stockholder may not make any sale, exchange, transfer, assignment,
gift, pledge, encumbrance, hypothecation or alienation of any shares of Common
Stock or Series A Preferred Stock of the Company, or any interest in such
shares, now held by or hereafter acquired by such Stockholder ("Restricted
Shares"), whether voluntarily or involuntarily or by operation of law
(hereinafter collectively referred to as a "transfer").
2. RIGHT OF FIRST REFUSAL.
2.1 NOTICE TO THE COMPANY.
(a) In the event any Stockholder (the "Transferring Stockholder")
desires to transfer any Restricted Shares other than as specifically provided in
SECTION 4 below, he, she or it must deliver a notice in writing to the Company
(the "Company Notice") stating such Stockholder's bona fide intention to
transfer such Restricted Shares, the names of the prospective Transferee or
Transferees (as defined in SECTION 6.3 below), the number of Restricted Shares
proposed to be transferred, and the price per share at which such Restricted
Shares are proposed to be transferred.
(b) In the event the proposed transfer is partially or completely in
exchange for assets other than cash, then such assets will be deemed to have a
cash value in the amount determined by the Company's Board of Directors in its
sole good faith opinion, in which case such cash value ascertained by the Board,
when added to any cash to be exchanged and then divided by the number of
Restricted Shares to be transferred, will be deemed the price per share set
forth in the Company Notice. In the event of a gift, property settlement or
other transfer in which the proposed Transferee is not paying the full price for
the Restricted Shares, and that is not otherwise exempted from the terms of
SECTIONS 2 and 3 hereof, the price shall be deemed to be the fair market value
of the stock at such time as determined in good faith by the Company's Board of
Directors.
2.2 COMPANY OPTION. For twenty (20) days following receipt of a Company
Notice, the Company will have an exclusive, irrevocable option to purchase any
or all of the Restricted Shares proposed to be transferred at the price per
share and upon the terms set forth in the Company Notice (the "Company Option").
2.3 EXERCISE OF COMPANY OPTION. In the event the Company elects to
acquire any or all of the Restricted Shares proposed to be transferred, prior to
the expiration of the Company Option, the Company shall deliver a notice in
writing to the Transferring Stockholder (the "Company Settlement Notice")
stating its election to acquire the subject Restricted Shares.
2.4 COMPANY SETTLEMENT. Within ten (10) days of receipt of the Company
Settlement Notice, the Transferring Stockholder must deliver to the Company all
certificates for the Restricted Shares being acquired by the Company which are
not already in the Company's custody, together with proper assignments in blank
of the Restricted Shares with signatures properly guaranteed and with such other
documents as may be required by the Company to provide reasonable assurance that
each necessary endorsement is genuine and effective, and the Company must
thereupon deliver to the Transferring Stockholder full cash payment for the
Restricted Shares being acquired, provided that if the terms of payment set
forth in the Company Notice were other than cash against delivery, the Company
shall pay for said Restricted Shares on the same terms and conditions set forth
in such Company Notice.
2.5 OPTION TO THE INVESTORS. For purposes of Section 2 only, "Investors"
and
"Investor" shall mean only those Investors (or groups of Investors which are
Affiliates) holding more than 100,000 shares of Series B Preferred Stock, Series
C Preferred Stock or Series D Preferred Stock, in the aggregate. In the event
the Company elects not to acquire all of the Restricted Shares proposed to be
transferred, prior to the expiration of the Company Option, it shall notify the
Transferring Stockholder in writing of such election and shall promptly deliver
a notice in writing to each Investor (the "Investor Notice") stating such
election to not acquire all the subject Restricted Shares and reciting the
Transferring Stockholder's bona fide intention to transfer such Restricted
Shares, the names of the prospective Transferee or Transferees, the number of
Restricted Shares proposed to be transferred, and the numbers of Restricted
Shares the Company has elected not to purchase, and the price per share at which
such Restricted Shares are proposed to be transferred. In the event the Company
does not provide notice to the Transferring Stockholder within the period of the
Company Option, the Transferring Stockholder shall provide the Investor Notice
to each Investor and to the Company. For twenty (20) days following receipt of
the Investor Notice, each Investor shall have the option to purchase not more
than its pro rata share (as defined in SECTION 2.6 below) of the Restricted
Shares proposed to be transferred to the Transferees at the price per share and
upon the terms set forth in the Investor Notice (the "Investor Option"). The
Company shall promptly, in writing inform each Investor which purchases all the
Restricted Shares available to it ("Fully-Exercising Investor") of any other
Investor's failure to do likewise. During the ten-day period commencing after
receipt of such information, each Fully-Exercising Investor shall be entitled to
obtain that portion of the Restricted Shares for which Investors were entitled
to subscribe but which were not subscribed for by the Investors which is equal
to the proportion at the number of shares of Common Stock issued and held, or
issuable upon conversion of Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock then held, by such Fully-Exercising Investor bears
to the total number of shares of Common Stock issued and held, or issuable upon
conversion of the Series B Preferred Stock, the Series C Preferred Stock and the
Series D Preferred Stock, then held, by all Fully-Exercising Investors who wish
to purchase some of the unsubscribed Shares.
2.6 DETERMINATION OF PRO RATA SHARE. For purposes of this Section 2, each
Investor's "pro rata share" is a ratio of (i) the total number of shares of
Common Stock and Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock of the Company held by such Investor as of the date of the
Investor Notice (on an as-if-converted to Common Stock basis) to (ii) the total
aggregate shares of Common Stock and Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (on an as-if-converted to Common
Stock basis) of the Company held by all Investors who deliver an Investor Notice
as of such date.
2.7 ASSIGNMENT OF INVESTOR OPTION. Each Investor may assign his, her or
its rights under this SECTION 2 to another Investor or to any Stockholder who
acquires an Investor's shares or to any general partner or limited partner of an
Investor who will after the assignment (together with any of its Affiliates)
hold at least 100,000 shares of stock of the
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Company; PROVIDED, HOWEVER, that if payment is to be made in any manner other
than all cash against delivery of the Restricted Shares being sold, such
assignee must be reasonably creditworthy.
2.8 EXERCISE OF INVESTOR OPTION. In the event an Investor and/or its
assignee elects to acquire a portion of the Restricted Shares proposed to be
transferred, prior to the expiration of the Investor Option, such Investor
and/or assignee shall deliver a written notice of exercise ("First Refusal
Exercise Notice") to the Company. The Investor and/or assignee shall specify in
the First Refusal Exercise Notice the number of shares such Investor and/or
assignee thereby irrevocably elects to purchase from the Transferring
Stockholder. In the event the number of shares so elected to be purchased by
Investors exceeds, in the aggregate, the number of Restricted Shares proposed to
be transferred pursuant to the Investor Notice and not subscribed to by the
Company, such shares shall be allocated among the electing Investors according
to each electing Investor's pro rata share (as defined in SECTION 2.6 above).
Settlement for said shares shall be made as provided in SECTION 2.9 below.
2.9 INVESTOR SETTLEMENT. Promptly upon expiration of the Investor Option,
the Company shall deliver a notice in writing to the Transferring Stockholder
and each Investor and/or assignee who elected to acquire a portion of the
Restricted Shares subject to the Investor Option (the "Investor Settlement
Notice") setting forth the number of Restricted Shares to be sold to each
Investor and/or assignee and the price thereof. Within ten (10) days of receipt
of the Investor Settlement Notice, the Transferring Stockholder must deliver to
the Company any certificates for the Restricted Shares being acquired by the
Investors and/or assignees which are not already in the Company's custody,
together with proper assignments in blank of the Restricted Shares with
signatures properly guaranteed and with such other documents as may be required
by the Company to provide reasonable assurance that each necessary endorsement
is genuine and effective. Within ten (10) days of receipt of the Investor
Settlement Notice, each Investor and/or assignee acquiring a portion of the
Restricted Shares must deliver to the Company (a) full cash payment for the
portion of the subject Restricted Shares being so acquired, provided that if the
terms of payment set forth in the Investor Notice were other than cash against
delivery, the Investors electing to acquire a portion of the subject Restricted
Shares and/or their assignees shall pay for said shares on the same terms and
conditions set forth in such Investor Notice; and, if applicable, (b) evidence
satisfactory to the Company that such assignee has become a party to this
Agreement. The Company shall thereafter promptly remit full payment for the
Restricted Shares acquired hereby to the Transferring Stockholder and deliver
the new or assigned certificates to the Investors and/or assignees, as
appropriate.
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3. RIGHT OF CO-SALE.
3.1 CO-SALE NOTICE. In the event that less than all of the Restricted
Shares proposed to be transferred by a Transferring Stockholder are acquired by
the Company or the Investors pursuant to SECTION 2 above, the Company shall
deliver, promptly upon expiration of the Investor Option, a notice in writing to
each Investor (the "Co-Sale Notice") reiterating the names of the prospective
Transferee or Transferees, the number of Restricted Shares proposed to be
transferred and not acquired pursuant to the Company Option or the Investor
Option, and the price per share at which such Restricted Shares are proposed to
be transferred.
3.2 RIGHT OF CO-SALE. Each Investor shall have the right to sell to the
Transferee (or, upon the unwillingness of any Transferee to purchase directly
from such Investor, to the Transferring Stockholder) not more than its pro rata
share (as defined in SECTION 3.3 below) of the Restricted Shares subject to the
Co-Sale Notice on the terms set forth in the Co-Sale Notice. If the
consideration to be paid by the Transferee is of a nature that cannot be given
to Investors, then each Investor shall have the right to sell its pro rata share
of the Restricted Shares subject to the Co-Sale Notice to the Transferring
Stockholder at the fair market value per share of such consideration.
3.3 DETERMINATION OF PRO RATA SHARE. For purposes of this Section 3, each
Investor's "pro rata share" is a ratio of (i) the total number of shares of
Common Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock of the Company held by an Investor as of the date of the Co-Sale
Notice (on an as-if-converted to Common Stock basis) to (ii) the total aggregate
shares of Common Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock of the Company held by all Investors electing to sell
to the Transferee or Transferees (on an as-if-converted to Common Stock basis).
3.4 EXERCISE OF RIGHT OF CO-SALE. In order to exercise the right of
co-sale, an Investor shall deliver a notice of exercise (the "Co-Sale
Exercise Notice") to the Transferring Stockholder, with a simultaneous copy
to the Company, within fifteen (15) days after receipt of the Co-Sale Notice.
The Investor shall specify in the Co-Sale Exercise Notice the number of
shares, up to its pro rata share (as defined in SECTION 3.3 above), such
Investor desires to sell.
3.5 CONSUMMATION OF CO-SALE.
(a) Each Investor exercising its right of co-sale hereunder shall
effect its participation in the sale by promptly delivering to the Transferring
Stockholder for transfer to the prospective Transferee one or more certificates,
properly endorsed for transfer, which represent:
(i) the type and number of shares of capital stock which such
Investor elects to sell; or
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(ii) that number of shares of Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock which is at such time convertible
into the number of shares of Common Stock which such Investor elects to sell;
PROVIDED, HOWEVER, that if the prospective Transferee objects to the delivery of
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
in lieu of Common Stock or Series A Preferred Stock, such Investor shall convert
such Series B Preferred Stock, Series C Preferred Stock or Series D Preferred
Stock into Common Stock and deliver Common Stock. The Company agrees to make
any such conversion concurrent with the actual transfer of such shares to the
Transferee.
(b) The stock certificate or certificates that the Investor delivers
to the Transferring Stockholder pursuant to SECTION 3.5(a) shall be transferred
to the prospective Transferee in consummation of the sale of the subject
Restricted Shares pursuant to the terms and conditions specified in the Co-Sale
Notice, and the Transferring Stockholder shall concurrently therewith remit to
such Investor that portion of the sale proceeds to which such Investor is
entitled by reason of its participation in such sale. To the extent that any
prospective Transferee prohibits the assignment of any certificates or refuses
to purchase shares from an Investor exercising its right of co-sale hereunder,
the Transferring Stockholder shall not sell such prospective Transferee any
shares of Common Stock unless and until, simultaneously with such sale, the
Transferring Stockholder shall purchase such shares of Common Stock from such
Investor for the same consideration and on the same terms and conditions as the
proposed transfer described in the Co-Sale Notice.
3.6 TRANSFER OF RESTRICTED SHARES UPON FAILURE TO EXERCISE RIGHT OF
CO-SALE. If none of the Investors elect to participate in the sale of the
Restricted Shares subject to the Co-Sale Notice, the Transferring Stockholder
may, not later than sixty (60) days following the Investors' receipt of the
Co-Sale Notice, conclude a transfer of not less than all of the Restricted
Shares covered by the Notice on terms and conditions not more favorable to
the Transferring Stockholder than those described in the Co-Sale Notice. Any
proposed transfer on terms and conditions more favorable than those described
in the Co-Sale Notice, as well as any subsequent proposed transfer of any
Restricted Shares by the Transferring Stockholder, shall again be subject to,
and require compliance with, the provisions of SECTIONS 2 and 3 hereof.
4. EXCEPTIONS TO RESTRICTIONS ON TRANSFER.
4.1 Notwithstanding the restrictions on transfer set forth in SECTION 1,
or the rights of first refusal and co-sale rights set forth in SECTIONS 2 and 3
of this Agreement, any "Xxxxx Stockholder" may transfer, by sale, gift or
otherwise, all or any part of their Restricted Shares, to any other Xxxxx
Stockholder. For this purpose, a Xxxxx Stockholder shall mean and include (i)
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxx or
Xxxxx Xxxxx, individually or as a trustee, (the "Rubios"), (ii) any lineal
descendant of a Xxxxx, and (iii) any trust or other entity in which
substantially all of the beneficial ownership interests are held, directly or
indirectly through one or more intermediaries, by any one or
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more Rubios or lineal descendant of a Xxxxx.
4.2 Notwithstanding the Investors' rights of first refusal and co-sale set
forth in SECTION 2 and 3 of this Agreement, any Stockholder other than a Xxxxx
Stockholder may transfer all or part of the Restricted Shares owned by such
Stockholder:
(a) in the case of individuals, (i) to members of his or her
Immediate Family, if by gift, where "Immediate Family" means any parent, spouse,
child, grandchild, brother or sister of the Stockholder, or any trust for the
sole benefit of any or all of such persons, and (ii) to his or her heirs,
executors or other fiduciaries pursuant to a last will and testament of the
Stockholder or pursuant to the terms of any trust which take effect upon death
of the Stockholder; and
(b) in the case of any other stockholder, (i) to its Affiliates,
where "Affiliates" means any other person or entity that, directly or indirectly
through one or more intermediaries, is in control of, is controlled by, or is
under common control with such Stockholder, and (ii) to its successors in
interest.
4.3 Any transfer of Restricted Shares made pursuant to the provisions of
this SECTION 4 shall be subject to the following:
(a) This Agreement shall be binding upon each Transferee of such
Restricted Shares;
(b) Prior to the completion of such transfer, each such Transferee or
such Transferee's legal representative shall have executed documents in form and
substance satisfactory to the Company, evidenced by the Company's written
acknowledgement of such satisfaction, assuming the obligations of a Stockholder
under this Agreement with respect to the transferred Restricted Shares; and
(c) Such transferred Restricted Shares shall remain subject to the
provisions of this Agreement, and references to "Stockholders" hereunder shall
be deemed thereafter to apply to and include the Transferee or Transferees of
any such Restricted Shares.
5. TERMINATION OF RESTRICTIONS ON TRANSFERS. Notwithstanding anything in this
Agreement to the contrary, the right of first refusal and right of co-sale set
forth in SECTIONS 2 and 3 hereof shall not apply to and shall terminate upon the
closing date of the sale and purchase of shares of Common Stock pursuant to an
effective registration statement of the Company filed under the Securities Act
with respect to an underwritten public offering of its Common Stock in which the
Company and any selling stockholders receive not less than $15,000,000 aggregate
net proceeds.
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6. LEGENDS; STOP-TRANSFER INSTRUCTIONS.
6.1 LEGENDS. All certificates representing Restricted Shares subject to
this Agreement will bear the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SHARES REPRESENTED
BY THIS CERTIFICATE IS RESTRICTED BY AND SUBJECT TO THE PROVISIONS OF
A STOCKHOLDERS AGREEMENT, AS THE SAME MAY BE AMENDED, AMONG THE
PARTIES NAMED THEREIN, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL
OFFICE OF THE ISSUER OF SUCH SHARES."
In addition, such certificates will bear legends required under any other
applicable agreement or securities law.
6.2 STOP-TRANSFER INSTRUCTIONS. The Company may impose stop-transfer
instructions with respect to the Restricted Shares or other securities subject
to the foregoing restrictions and will make a notation regarding the
restrictions on transfer of the Restricted Shares in its stock books. The
Restricted Shares will be transferred on the books of the Company only if
transferred in compliance with this Agreement and applicable securities laws.
Each Stockholder agrees to use his, her or its best efforts to cause the
officers of the Company to refuse to record on the Company's books any transfer
made or attempted to be made except in accordance with this Agreement and to
cause such officers to refuse to cancel old certificates or to issue or deliver
new certificates therefor where the purchaser or assignee has acquired
Restricted Shares, except strictly in accordance with this Agreement.
6.3 TRANSFEREES. Without limiting the restrictions on transfer set forth
herein, each transferee (including, without limitation, any vendee, transferee,
successor, assignee, donee, pledgee or hypothecate) who acquires an interest in
any shares of Common Stock or Series A Preferred Stock (the "Transferee") will
be subject to all the transfer restrictions and other obligations with respect
to such shares imposed by this Agreement as if he, she or it were a Stockholder
and will, for purposes of this Agreement, be deemed to be a Stockholder. The
conditions and stipulations contained in this Agreement constitute a covenant
running with the Restricted Shares, and any actual or attempted transfer in
violation of this Agreement is null and void and of no legal effect.
7. MISCELLANEOUS.
7.1 CONDITIONS TO EXERCISE OF RIGHTS. Exercise of the rights granted to
the Company and the Investors under this Agreement shall be subject to and
conditioned upon, and the parties shall use their best efforts to assist the
Company and Investors in, compliance with applicable laws.
7.2 CORPORATE LAW COMPLIANCE. The right of the Company to repurchase any
of
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the Restricted Shares is subject to the restrictions governing the rights of
a corporation to purchase its own shares contained in any applicable state laws
and such other pertinent governmental restrictions as may from time to time be
effective.
7.3 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California applicable to contracts between California residents entered
into and to be performed entirely within the State of California, excluding its
choice of law provisions. Any suit arising hereunder will be brought in the
United States District Court for the Southern District of California or the
Superior Court of California for the County of San Diego, and the parties hereby
irrevocably consent to the exclusive jurisdiction and venue thereof, as well as
to service of process within or without the State of California by certified
mail requiring a signed receipt.
7.4 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
(collectively, "Successors").
7.5 POWER OF ATTORNEY. Each Stockholder and Investor, by executing this
Agreement, irrevocably appoints each of the officers of the Company his, her or
its true and lawful attorney-in-fact to execute any amendments hereto for the
sole purpose of adding or deleting Stockholders or Investors.
7.6 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects
hereof.
7.7 NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be sent to the
address/fax number indicated for such party on the signature page hereof
(provided that any party may at any time change its address/fax number for
notice by ten (10) days' advance written notice to the other parties), and shall
be deemed effectively given upon (i) personal delivery to the party to be
notified, (ii) the time of successful facsimile transmission to the party to be
notified, (iii) sending by reputable overnight delivery service or (iv) three
(3) days after deposit with the United States Post Office, by registered or
certified mail.
7.8 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereunder
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be
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effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
7.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Stockholders
and Investors, all of which together shall constitute one instrument. This
Agreement shall be enforceable by and against only the parties actually
executing such counterparts (and their Successors).
7.10 SEVERABILITY. In the case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.11 AMENDMENTS. The provisions of this Agreement may be amended at any
time and from time to time, and particular provisions of this Agreement may
be waived, with and only with an agreement or consent in writing signed by
the Company, by the holders of eighty percent (80%) of the Common Stock
issuable or issued upon conversion of the Preferred Stock held by the
Investors as of the date of such amendment or waiver, and, to the extent that
the rights of the Stockholder are specifically affected by such amendment or
waiver, by the holders of a majority-in-interest of the Stockholders. Each
Investor and each Stockholder acknowledges that by the operation of this
SECTION 7.11 eighty percent (80%) of the Investors or a majority-in-interest
of the Stockholders, as the case may be, may have the right and power to
diminish or eliminate all rights of such Investor or Stockholder under this
Agreement.
7.12 COMPANY REPRESENTATION. The Company and the Stockholders represent to
the Investors that the Shareholders Agreement dated January 31, 1995 does not
conflict with or reduce any rights or privileges of the Investors or
Stockholders under this Agreement or the Amended and Restated Investors' Rights
Agreement dated the same date as this Agreement, except, with respect to the
Stockholders, as set forth in Section 4.1 of this Agreement.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE COMPANY: XXXXX'X RESTAURANTS, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
President
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
STOCKHOLDERS: XXXXX XXXXX AND XXXXX XXXXX AS
TRUSTEES OF THE XXXXX XXXXX AND
XXXXX XXXXX FAMILY TRUST
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, Trustee
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, Trustee
Address: 0000 Xxx Xxxxxxxxxx
Xxx Xxx, XX 00000
Fax No.:
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XXXXXX X. XXXXX AND XXXXXX X. XXXXX,
Co-Trustees of the Xxxxxx X. Xxxxx
and Xxxxxx X. Xxxxx Family Trust
By: /s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Address: 0000 Xxxxxxxxx Xx.
Xxx Xxxxx, XX 00000
Fax No.:
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[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
XXXXXX X. XXXXXX AND XXXXXX X. XXXXXX,
AS TRUSTEES OF THE XXXXXX AND
XXXXXX XXXXXX TRUST
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
XXXXXXX X. XXXXX AND XXXXXXXX X. XXXXX
AS TRUSTEES OR SUCCESSORS OF THE XXXXXXX
AND XXXXXXXX XXXXX TRUST
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, Trustee
/s/ Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxx X. Xxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Fax No.:
----------------------------
XXXXXX XXXXX AS TRUSTEE OF THE
XXXXXX XXXXX TRUST
By: /s/ Xxxxxx Xxxxx, Trustee
---------------------------------
Xxxxxx Xxxxx, Trustee
Address: 1724 Folus
Xxxxxxxxx, XX 00000
Fax No.:
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[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
XXXXXX XXXXXX AS TRUSTEE OF THE TRUST
FBO XXXXX XXXXX
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
THE INVESTORS: ROSEWOOD CAPITAL, L.P.
By: Rosewood Associates L.P.,
its general partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxx, Principal
Address: Xxx Xxxxxxxx Xxxxx,
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
XXXXXXX FAMILY TRUST DATED
DECEMBER 8, 1988
By:
---------------------------------
, Trustee
------------------
Address: 000 Xxxxx Xxxxxxx Xxxxxx #0
Xxxxxxxx, XX 00000
Fax No.:
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BROPHAR INVESTOR PARTNERS
By: /s/ Xxxxx Xxxxxxx
---------------------------------
General Partner
Address: c/o Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
EVEREN SECURITIES, CUSTODIAN FOR
XXXXX X. XXXXXXX XXX
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Address: 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.:
---------------------------
/s/ R. Xxxx Xxxxxxxx
------------------------------------
R. XXXX XXXXXXXX
Address: 00000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Fax No.:
----------------------------
/s/ Xxx Xxxxxx
------------------------------------
XXX XXXXXX
Address: 00 Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No.:
----------------------------
T. XXXXX AND XXXXXXXX XXXXXXXXX
/s/ T. Xxxxx Xxxxxxxxx
------------------------------------
T. Xxxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxxx Xxxxxxxxx
Address: 0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax No.: 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
/s/ Xxxxxx Xxxxx
------------------------------------
XXXXXX X. XXXXX, XX.
Address: 0000 Xxxxxxxx Xxxxxx
Xx Xxxxx, XX 00000
Fax No.: (000) 000-0000
/s/ Xxxx Xxxxx
------------------------------------
XXXX XXXXX
Address: 0000 Xxxx Xxxx
Xx Xxxxx, XX 00000
Fax No.: 619/ 000-0000
PRUDENTIAL SECURITIES, CUSTODIAN FOR
XXXXX X. XXXXXXXX XXX
By:
---------------------------------
Address: 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.:
----------------------------
UMB BANK, N.A., TRUSTEE OF THE
XXXXXXX, XXXXXXX & XXXXXXXX
RETIREMENT PLAN F/B/O XXXXXXX X.
XXXXXXXX
By:
---------------------------------
Vice President
Address: 0000 Xxxxx Xxxxxx
P. O. Box 419692
Xxxxxx Xxxx, XX 00000-0000
Fax No.:
----------------------------
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
UMB BANK, N.A., TRUSTEE OF THE
XXXXXXX, XXXXXXX & XXXXXXXX
RETIREMENT PLAN F/B/O XXX XX XXXXX
By:
---------------------------------
Vice President
Address: 0000 Xxxxx Xxxxxx
P. O. Box 419692
Xxxxxx Xxxx, XX 00000-0000
Fax No.:
---------------------------
-------------------------------------
Xxxxx X. Xxxxxxxx
Address: 00 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Fax No.:
----------------------------
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Address: c/o Rubio's Restaurants, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
/s/ Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
Address: Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Address: c/o EVEREN Securities
0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No.:
---------------------------
-------------------------------------
J. Xxxxxxx Xxxxxxxxxx
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No.:
---------------------------
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Address: c/o Rubio's Restaurants, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxx
--------------------------------
Managing Member
Address: Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxx
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxx
--------------------------------
Managing Member
Address: Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxx
FARRALON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxx
--------------------------------
Managing Member
Address: Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxx
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxx
--------------------------------
Managing Member
Address: Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxx
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxx Xxxx
-------------------------------------
Managing Member
Address: Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxx
W.A. & H. INVESTMENT, L.L.C.
By: /s/ illegible
--------------------------------
Title:
--------------------------------
Address: Xxxxxxx, Xxxxxx & Xxxxxxxxx, L.L.C.
c/o Xxx-Xxx Xxxx
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Fax No:
------------------------------
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
Fax No: 000-000-0000
XXXXX AND XXXXXX XXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No:
---------------------------
XXXX AND XXXXX XXXXX
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
Address: 0000 Xxxx Xxxx
Xx Xxxxx, XX 00000
Fax No: 619/000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
X.X. XXXXXXX CO., INC. PROFIT SHARING
TRUST FOR THE BENEFIT OF XXXX
XXXXXXX XXXXXX & XXXX XXXXXXX
XXXXXX
By: /s/ illegible
--------------------------------
Trustee
Address:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No: 000 000-0000
XXXXX AND XXX XXXXXXX
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
/s/ Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
Address: 00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: 000-000-0000
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
Address: 00 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Fax No: 000-000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
XXXXXXX AND XXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
Address: 000 Xxxxxxxxxx
Xxx Xxxxx, XX 00000
Fax No: 000-0000
XXXXXXX, PHLEGER & XXXXXXXX LLP
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: Partner
-------------------------------
Address: Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax No: (000) 000-0000
/s/ Lic Xxxxxxx Xxxxxxxx
-------------------------------------
Lic. Xxxxxxx Xxxxxxxx R.R.
Address: Batallon De San Xxxxxxxx No. 111
Torre Comercial America Piso 26
Fracc. Xxxxx Oriente
Xxxxx Xxxxxx, N.L. CP66269 Mexico
Fax No:
------------------------------
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
XXXXXX X. AND XXXXXX
XXXXXXX JTWROS
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Fax No: (000) 000-0000
EVEREN CLEARING CORP. CUST. FBO:
XXXX X. XXXX XXX
By: /s/ Xxxx Xxxx
----------------------------------
Title:
--------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Address: 00000 Xxxxxxxx Xx.
Xxx Xxxxx, XX 00000
Fax No: 000-000-0000
EVEREN CLEARING CORP. CUST. FBO:
XXXXXX X. XXXXXXX XXX
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Title:
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
EVEREN CLEARING CORP. CUST. FBO:
XXXXX X. XXXX XXX
By: /s/ Xxxxx Xxxx
----------------------------------
Title:
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
EVEREN CLEARING CORP. CUST. FBO:
XXXXXX XXXX XXX
By: /s/ Xxxxxx Xxxx
----------------------------------
Title:
-------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
XXXXX X. XXXX & XXXXXX XXXX JTWROS
/s/ Xxxxx Xxxx
-------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx
Address: 000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Fax No: 000 000-0000
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
Address: Nations Bank Xxxxxxxxxx Securities
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax No: 000-000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
/s/ J. Xxxxxxx Xxxxxxxxxx
-------------------------------------
J. Xxxxxxx Xxxxxxxxxx
Address: Nations Bank Xxxxxxxxxx Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: 000-0000
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx, Trustee for Xxxxxxx
Family Trust
Address: Nations Bank Xxxxxxxxxx Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: 000 000 0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND
RESTATED STOCK RESTRICTION AGREEMENT]
SCHEDULE A
Schedule of Stockholders
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Xxxxx Xxxxx and Xxxxx Xxxxx as
Trustees of the Xxxxx Xxxxx
and Xxxxx Xxxxx Family Trust
-------------------------------------------------------------------------------
Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxx, Co-Trustees of the
Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxx Family Trust
-------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxx, as Trustees of the
Xxxxxx and Xxxxxx Xxxxxx Trust
-------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx and Xxxxxxxx
X. Xxxxx as Trustees or
Successors of the Xxxxxxx and
Xxxxxxxx Xxxxx Trust
-------------------------------------------------------------------------------
Xxxxxx Xxxxx as Trustee of the
Xxxxxx Xxxxx Trust
-------------------------------------------------------------------------------
Xxxxxx Xxxxxx, as Trustee of
the Trust FBO Xxxxx Xxxxx
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
