EXHIBIT 10.4
XXXXX'X RESTAURANTS, INC.
AMENDMENT NUMBER ONE TO THE
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Amendment No. 1 ("Amendment") to the Series C Preferred Purchase
Agreement dated as of March 28, 1996 (together, the "Agreement"), is made as of
this 30th day of June, 1996 by and among Xxxxx'x Restaurants, Inc. a California
corporation (the "Company"), the investors listed on SCHEDULE A to the
Agreement, (the "Existing Series C Investors"), and the investors listed on
SCHEDULE A hereto (the "New Investors"). Capitalized terms used herein which
are not defined herein shall have the definitions ascribed to them in the
Agreement.
RECITALS
A. The Company desires to sell and issue to the New Investors, and the
New Investors desire to purchase from the Company, up to 18,582 shares of the
Company's Series C Preferred Stock pursuant to the Agreement.
B. The Existing Investors desire for the New Investors to invest in the
Company and, as a condition thereof and to induce such investment, the Existing
Investors are willing to enter into this Amendment to permit the New Investors
to become parties to the Agreement.
In consideration of the foregoing and the promises and covenants contained
herein and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO AGREEMENT.
Section 1.3 is hereby amended and shall read in its entirety as
follows:
1.3 SUBSEQUENT SALE OF SERIES C PREFERRED STOCK. To the
extent that less than 825,000 shares of Series C Preferred Stock
are sold at the Closing, the Company may sell any remaining
shares of Series C Preferred Stock at a price not less than
$5.38126 per share to such other purchaser(s) as the Company's
Board of Directors shall select, provided such sale is completed
on or before June 30, 1996 (the "Second Closing"). Any such
purchaser shall execute a counterpart signature page to this
Agreement, Amendment Number Two to the Investors' Rights
Agreement, and the Stock Restriction Agreement; and any
additional sales of Series C Preferred Stock to Investors shall
be deemed to be made hereunder. The sale of any additional
shares of Series C Preferred Stock under this Section 1.3
occurring on or before June 30, 1996 shall not be subject to the
Investor's right of
first offer contained in Section 2.4 of the Investors' Rights
Agreement dated February 1, 1995, as amended, or the Amendment
Number Two to the Investors' Rights Agreement to be executed
contemporaneously with this Agreement (collectively, the
"Investors' Rights Agreement"); otherwise, such shares shall be
subject to the Investors' right of first offer under the
Investors' Rights Agreement.
2. EFFECT OF AMENDMENT. Except as amended and set forth above, the
Agreement shall continue in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each which will be deemed an original, and all of which together
shall constitute one and the same instrument.
4. SEVERABILITY. If one or more provisions of this Amendment are held to
be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5. ENTIRE AGREEMENT. This Amendment, together with the Agreement,
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
6. GOVERNING LAW. This Amendment shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment is hereby executed as of the date first
above written.
COMPANY: XXXXX'X RESTAURANTS, INC.
a California corporation
By: /s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
INVESTORS: ROSEWOOD CAPITAL, L.P.
By: Rosewood Capital Associates, L.P.,
General Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------
General Partner
Address: Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
/s/ J. Xxxxxxx Xxxxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxxxx
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Address: c/o Rubio's Restaurants, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO
SERIES C PREFERRED STOCK PURCHASE AGREEMENT]
SCHEDULE A
SCHEDULE OF SECOND CLOSING INVESTORS
Number
Name Investment of Shares
--------------------------- ------------------- ---------------
J. Xxxxxxx Xxxxxxxxxx $49,997.29 9,291
Xxxxx Xxxxxx $49,997.29 9,291
---------- ------
TOTAL: $99,994.58 18,582
