EXHIBIT 10.7
XXXXX'X RESTAURANTS, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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November 19, 1997
TABLE OF CONTENTS
PAGE
1. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Request for Registration . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Company Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Obligations of the Company . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Furnish Information. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Expenses of Demand Registration. . . . . . . . . . . . . . . . . . . . . 5
1.7 Expenses of Company Registration . . . . . . . . . . . . . . . . . . . . 6
1.8 Underwriting Requirements. . . . . . . . . . . . . . . . . . . . . . . . 6
1.9 Delay of Registration. . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Reports Under Securities Exchange Act of 1934. . . . . . . . . . . . . . 9
1.12 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.13 Assignment of Registration Rights. . . . . . . . . . . . . . . . . . . . 11
1.14 Limitations on Subsequent Registration Rights. . . . . . . . . . . . . . 11
1.15 "Market Stand-Off" Agreement . . . . . . . . . . . . . . . . . . . . . . 11
1.16 Termination of Registration Rights . . . . . . . . . . . . . . . . . . . 12
2. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Delivery of Financial Statements . . . . . . . . . . . . . . . . . . . . 12
2.2 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Termination of Covenants . . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.5 Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.4 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.7 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.9 Aggregation of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.11 Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.12 Amendment of Prior Agreement . . . . . . . . . . . . . . . . . . . . . . 17
Schedule A - Schedule of Investors
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of
November 19, 1997, by and between Xxxxx'x Restaurants, Inc., a Delaware
corporation (the "Company"), and the investors listed on Schedule A hereto, each
of which is herein referred to as an "Investor."
RECITALS
WHEREAS, the Company and certain of the investors (the "Existing
Investors") are parties to that certain Investors' Rights Agreement, dated
February 1, 1995, as amended on June 10, 1995 and March 28, 1996 (the "Prior
Agreement").
WHEREAS, the Company desires to sell and issue to certain of the Investors
(the "Series D Investors"), and the Series D Investors desire to purchase from
the Company, up to 1,389,943 shares of Series D Preferred Stock pursuant to the
Series D Preferred Stock Purchase Agreement dated of even date herewith (the
"Series D Agreement").
WHEREAS, the Existing Investors desire for the Series D 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 Agreement to amend and restate
the Prior Agreement subject to Section 3.10 and 3.12 hereof.
WHEREAS, certain of the Company's and the Series D Investors obligations
under the Series D Agreement are conditioned upon the execution and delivery of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
1.1 DEFINITIONS. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Affiliates" means any persons or entities that,
directly or indirectly through one or more intermediaries, are in control of,
are controlled by, or are under common control with a specified party.
(c) The term "register", "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(d) The term "Registrable Securities" means (1) the Common Stock
issuable or issued upon conversion of the Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock and (2) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Common
Stock, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which his rights under this Section 1 are not
assigned.
(e) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(f) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof.
(g) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission ("SEC") which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(h) The term "Series B Registrable Securities" means (1) the
Common Stock issuable or issued upon conversion of the Series B Preferred Stock
and (2) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Series B Preferred Stock or Common Stock, excluding in all
cases, however, any Series B Registrable Securities sold by a person in a
transaction in which his rights under this Section 1 are not assigned.
(i) The term "Series C Registrable Securities" means (1) the
Common Stock issuable or issued upon conversion of the Series C Preferred Stock
and (2) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Series C Preferred Stock or Common Stock, excluding in all
cases, however, any Series C Registrable Securities sold by a person in a
transaction in which his rights under this Section 1 are not assigned.
(j) The term "Series D Registrable Securities" means (1) the
Common Stock issuable or issued upon conversion of the Series D Preferred Stock
and (2) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Series D Preferred Stock or Common Stock, excluding in all
cases, however, any Series D Registrable Securities sold by a person in a
transaction in which his rights under this Section 1 are not assigned.
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1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after six (6)
months from the effective date of the first registration statement for a public
offering of securities of the Company (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145
transaction), a written request from the Holders of at least a majority of the
Series B Registrable Securities and Series C Registrable Securities or a
majority of the Series D Registrable Securities that the Company file a
registration statement under the Act covering the registration of Registrable
Securities with an anticipated aggregate offering price, net of underwriters'
discounts and commissions, of not less than $5,000,000, then the Company shall,
within ten (10) days of the receipt thereof, give written notice of such request
to all Holders (who shall have the right to participate in such registration)
and shall, subject to the limitations of subsection 1.2(b), effect as soon as
practicable, and in any event shall use its best efforts to effect within sixty
(60) days of the receipt of such request, the registration under the Act of all
Registrable Securities which the Holders request to be registered within twenty
(20) days of the mailing of such notice by the Company in accordance with
Section 3.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event,
the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
approved for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company requested to be included by each Holder; provided, however, that the
number of shares of Registrable Securities to be included in such underwriting
shall not be reduced unless all securities other than Registrable Securities are
first entirely excluded from the underwriting.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 1.2 (one (1) initiated by holders of a
majority of the Series B Registrable Securities and Series C Registrable
Securities and one (1) initiated by
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holders of a majority of the outstanding Series D Registrable Securities) and is
not obligated to effect a demand registration pursuant to this Section 1.2 until
at least six (6) months have elapsed from a prior registration whether pursuant
to this Section 1.2 or otherwise.
(d) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement and stating the reasons therefor, the Company shall have
the right to defer taking action with respect to such filing for a period of not
more than one-hundred twenty (120) days after receipt of the request of the
Initiating Holders.
1.3 COMPANY REGISTRATION. If at any time the Company proposes to
register (whether for its own account or for the account of any stockholder
other than registrations effected pursuant to Sections 1.2 and 1.12 of this
Agreement) any of its stock or other securities under the Act in connection with
the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, or a registration on any form which does not include
substantially the same information about the Company as would be required to be
included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the Company in
accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this Section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(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 twenty (120) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
1.5 FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself and the Registrable Securities
held by it, and upon request by the Company the intended method of disposition
of such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does not equal or
exceed the anticipated aggregate offering price required to originally trigger
the Company's obligation to initiate such registration as specified in
subsection 1.2(a) or subsection 1.12(b)(2), whichever is applicable.
1.6 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Initiating Holders (in which case all participating Holders shall
bear such expenses), unless the Initiating Holders agree to forfeit their right
to one demand registration pursuant to Section 1.2; provided further, however,
that the Holders shall not be required to forfeit such demand right if at the
time of such withdrawal, the Holders have learned of a material adverse change
in the condition, business
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or prospects of the Company from that known to the Holders at the time of their
request and have withdrawn the request with reasonable promptness following the
disclosure by the Company of such material adverse change.
1.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder, including (without limitation) all
registration, filing and qualification fees, printers, legal and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the selling Holders but excluding underwriting discounts and
commissions relating to the Registrable Securities.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned among the selling stockholders in proportion (as
nearly as practicable) to the amount of Registrable Securities of the Company
owned by each holder), provided, however, that the number of shares of
Registrable Securities to be included in such underwriting shall not be reduced
unless all other shares of securities (except the securities proposed to be sold
by the Company in such underwriting) are first entirely excluded from the
underwriting and in no event shall (i) the amount of securities of the selling
Holders included in the offering be reduced below twenty percent (20%) of the
total amount of securities included in such offering, unless such offering is
the initial public offering of the Company's securities or (ii) notwithstanding
(i) above, any shares being sold by a stockholder exercising a demand
registration right similar to that granted in Section 1.2 be excluded from such
offering. For purposes of the preceding parenthetical concerning apportionment,
for any selling stockholder which is a holder of Registrable Securities and
which is a partnership or corporation, the partners, retired partners and
stockholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling stockholder," and any
pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
1.9 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any
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controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act") and their partners, members, directors and officers, against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the Act, or the 1934 Act, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act or any blue sky laws, or any rule or regulation
promulgated under the Act or the 1934 Act; and the Company will pay to each such
Holder, underwriter or controlling person any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person,
and the Company's executive officers were not actually aware at the time of the
use of such information, without any duty of investigation, that such
information would result in a Violation.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the Act or the 1934 Act insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration and the Company's executive officers were not actually aware, at
the time of the use of such information, without any duty of investigation, that
such information
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would result in a Violation; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.10(b), in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld); provided further, that in no event shall
any indemnity under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder. With respect to any Registrable Securities
held by United Missouri Bank, n.a. as Trustee, the Holder's liability for
indemnification under this Agreement shall be limited to the assets held in the
participant's individually directed account who directed the purchase of this
investment and shall not extend to other assets of the Xxxxxxx, Xxxxxxx &
Xxxxxxxx Retirement Savings Plan or to UMB Bank, n.a. in its individual or any
other capacity.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10 except to the extent it actually
prejudices the ability to defend such action, but the omission to so deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and
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the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns at least
five percent (5%) of the Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company), the
Act and the 1934 Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
1.12 FORM S-3 REGISTRATION. In case the Company shall receive from
any Holder at any time after the first anniversary of the Company's first
underwritten public
-9-
offering a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
Registrable Securities as are specified in such request, together with any other
securities to be offered by the Company or other Holders (so long as inclusion
of such securities to be offered by the Company does not interfere with the
marketing of the requesting Holders' Registrable Securities specified in such
request) and together with all or such portion of the Registrable Securities of
any other Holder joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this section
1.12: (1) if Form S-3 is not available for such offering by the Holders; (2) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$500,000; (3) if the Company shall furnish to the Holders a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such Form S-3 Registration to be effected at
such time and stating the reasons therefor, in which event the Company shall
have the right to defer the filing of the Form S-3 registration statement for a
period of not more than 120 days after receipt of the request of the Holder
under this Section 1.12; (4) if the Company has, within the six (6)-month period
preceding the date of such request, already effected a registration on Form S-3
for the Holders pursuant to this Section 1.12; (5) if the Company has already
effected four (4) registrations on Form S-3 pursuant to this Section 1.12; or
(6) in any particular jurisdiction in which the Company would be required to
qualify to do business.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.12, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holders and counsel
for the Company, but excluding underwriters' commissions and discounts relating
to the Registrable Securities, shall be borne by the Company. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all
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related obligations) by a Holder to any of its general partners, limited
partners or Affiliates or to a transferee and its Affiliates or assignee and its
Affiliates of such securities who, after such assignment or transfer, holds at
least 250,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned. For the purposes of determining the
number of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees (i) who are Affiliates shall be aggregated
and (ii), of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants and siblings of
such partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
provided that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 1.
1.14 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2, 1.3 and
1.12 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders which is included or (b) to make a
demand registration which could result in such registration statement being
declared effective prior to the date set forth in subsection 1.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.15 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
Common Stock or other securities of the Company, following the effective date of
a registration statement for an underwritten public offering by the Company
filed under the Act, it shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except common stock included in such registration; provided, however, that:
(a) such agreement shall not exceed one-hundred eighty (180)
days for the first such registration statement of the Company which covers
Common Stock (or other securities) to be sold on its behalf to the public in an
underwritten offering; and
(b) such agreement shall not exceed ninety (90) days for any
subsequent registration statement of the Company which covers Common Stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering.
-11-
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.16 TERMINATION OF REGISTRATION RIGHTS.
(a) No Holder shall be entitled to exercise any right provided
for in Section 1.2 after such time as (i) the Holder can sell all of such stock
under Rule 144(k) (or successor rule) promulgated by the SEC and (ii) the Holder
holds less than two percent (2%) of the outstanding capital stock of the Company
(iii) and the Company is eligible to use Form S-3 (or a successor form)
promulgated by the SEC.
(b) No Holder shall be entitled to exercise any right provided
for in Sections 1.2, 1.3 or 1.12 after five (5) years following the consummation
of the sale of securities pursuant to a registration statement filed by the
Company under the Act in connection with the initial firm commitment
underwritten offering of its securities to the general public.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to
each Investor or group of Investors who are Affiliates which holds 40% of the
outstanding shares of Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock of the Company (each such Investor or group of
Investors who are Affiliates being a "Major Investor"), subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations:
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, audited consolidated
financial statements for the Company and its consolidated subsidiaries, such
year-end financial reports to be prepared in accordance with generally accepted
accounting principles ("gaap"), and audited and certified by independent public
accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year, a business plan and monthly financial
statement projections for the new fiscal year;
(c) within thirty (30) days of the end of each month,
consolidated financial statements for the Company and its consolidated
subsidiaries; and
(d) as soon as practicable, but in any event within thirty (30)
days after the end of each fiscal quarter, a quarterly budget and a narrative
report prepared by the president of the Company, explaining any material
developments and deviations from budget.
-12-
2.2 INSPECTION. The Company shall permit each Major Investor, at
such Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by the Investor; provided, however, that the Company shall not be
obligated pursuant to this Section 2.2 to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information absent an appropriate signed confidentiality agreement.
2.3 TERMINATION OF COVENANTS. Subject to their earlier termination
pursuant to the specific terms of each Section, the covenants set forth in
Sections 2.1, 2.2, 2.4, and 2.5 shall terminate and be of no further force or
effect when the sale of securities pursuant to a registration statement filed by
the Company under the Act in connection with the firm commitment underwritten
offering of its securities to the general public is consummated or when the
Company first becomes obligated to file reports under Section 13 of the 1934
Act, whichever event shall first occur.
2.4 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this paragraph 2.4, the Company hereby grants to each Investor or
group of Investors which are Affiliates holding more than 300,000 shares of
Registrable Securities, and to each of the stockholders listed on attached
SCHEDULE 2.4 (the Investors, group of Investors and such stockholders shall be
referred to herein as the "Offeree(s)") a right of first offer with respect to
future sales by the Company of its Shares (as hereinafter defined). An Offeree
shall be entitled to apportion the right of first offer hereby granted it among
itself and its partners, Affiliates and relatives in such proportions as it
deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Offeree in accordance with the following provisions:
(a) The Company shall deliver a notice pursuant to Section 3.5
("Notice") to the Offeree stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) Within twenty (20) calendar days after receipt of the
Notice, the Offeree may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of common stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock (collectively, the
"Preferred Stock") then held, by such Offeree bears to the total number of
shares of common stock of the Company then outstanding (assuming full conversion
of all convertible securities), issued and held, or issuable upon conversion of
the Preferred Stock then held, by all the Offerees. The Company shall promptly,
in writing, inform each Offeree which purchases all the Shares available to it
("Fully-Exercising Offeree") of any other Offeree's failure to do likewise.
During the ten (10)-day period commencing after receipt of such
-13-
information each Fully-Exercising Offeree shall be entitled to subscribe to that
portion of the Shares for which Offerees were entitled to subscribe but which
were not subscribed for by the Offerees which is equal to the proportion that
the number of shares of common stock issued and held, or issuable upon
conversion of Preferred Stock then held, by such Fully-Exercising Offeree bears
to the total number of shares of common stock issued and held, or issuable upon
conversion of the Preferred Stock then held, by all Fully-Exercising Offerees
who wish to purchase some of the unsubscribed Shares.
(c) If all Shares which Offerees are entitled to obtain pursuant
to subsection 2.4(b) are not elected to be obtained as provided in subsection
2.4(b) hereof, the Company may, during the thirty (30)-day period following the
expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the Offeree than, those
specified in the Notice. If the Company does not enter into an agreement for
the sale of the Shares within such period, or if such agreement is not
consummated within thirty (30) days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Offerees in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be
applicable (i) to the issuance or sale of shares of common stock (or options
therefor) to employees, consultants or directors of this Company (and not
repurchased at cost by the Company in connection with the termination of
employment or service relationship) subsequent to the date of this Agreement,
(ii) to or after consummation of a firm commitment underwritten offering of its
securities to the general public in which the aggregate gross cash proceeds to
the Company (prior to underwriters' discounts and expenses) are equal to or
exceed $15,000,000, (iii) the issuance of securities pursuant to the conversion
or exercise of convertible or exercisable securities, (iv) the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise or (v) the issuance of shares of stock, warrants or other
securities or rights to persons or entities (such as equipment lessors) with
which the Company has business relationships provided such issuances are for
other than primarily equity financing purposes.
2.5 NEGATIVE COVENANTS. The Company shall not take any of the
following actions without first obtaining the approval of a majority of the
Company's Board of Directors, including (i) the director elected by the holders
of the Series B Preferred Stock and Series C Preferred Stock, voting together as
a single class as set forth in subsection 5(b) of Article VI of the Amended and
Restated Certificate of Incorporation of the Company (the "Restated
Certificate") and (ii) the director, if any, elected by the holders of Series D
Preferred Stock, as set forth in subsection 5(b) of Article VI of the Restated
Certificate and Section 5 of the Series D Preferred Stock Purchase Agreement:
(a) approve the annual business plan of the Company; or
-14-
(b) create, incur, assume or suffer to exist debt obligations in
excess of $3,000,000 in the aggregate; or
(c) authorize management compensation, including granting stock
options to officers and management; or
(d) approve any stock option or stock issuance plans or any increase
in the number of shares of Common Stock reserved for issuance pursuant to the
Company's stock option or stock issuance plans, including any increase in the
325,000 shares reserved for issuance under the Company's 1995 Stock Option/Stock
Issuance Plan;
(e) enter into any agreements to license or franchise the Company's
concept or restaurants; or
(f) directly or indirectly redeem, purchase or otherwise acquire any
of the Company's equity securities from a member of the Xxxxx family (or any
trust or entity for such person), except for redemption of equity securities
from members of the Xxxxx family who are employees of the Company on standard
terms upon the termination of employment; or
(g) approve, or permit approval, of any change in the Company's
business concept; or
(h) merge or consolidate with any other party or acquire any interest
in any business; or
(i) sell, convey, liquidate, dissolve or otherwise dispose of the
assets of the Company in any transaction or series of transactions other than in
the ordinary course of business; or
(j) liquidate, dissolve or effect a recapitalization or
reorganization in any form or transaction; or
(k) enter into any transaction with any Affiliates of the Company,
except for normal employment arrangements and benefit programs on reasonable
terms; or
(l) directly or indirectly declare or pay any dividends or make any
distributions upon or repurchase or redeem any of its equity securities other
than the redemption rights pursuant to the Restated Certificate, or except for
redemptions of equity securities from employees and advisors of the Company on
standard terms upon termination of service.
3. MISCELLANEOUS.
-15-
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 GOVERNING LAW. This Agreement 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.
3.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 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.
3.6 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
eighty percent (80%) of the Registrable Securities then outstanding; provided,
however, that such consent may not be unreasonably withheld in connection with
any amendments to this Agreement which add additional parties to this Agreement
with rights pari passu to those granted to the Investors hereunder. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such shares and the Company.
3.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement
-16-
and the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
3.9 AGGREGATION OF STOCK. All shares of Registrable Securities held
or acquired by Affiliates or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
3.10 ENTIRE AGREEMENT. Section 2.6 of the Prior Agreement, with
respect to the holders of Series B Preferred Stock and Series C Preferred Stock
only, and this Agreement (including the Exhibits hereto, if any) constitute the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof.
3.11 REPRESENTATION. By executing this Agreement, each Investor and
each other person or entity executing this Agreement acknowledges and agrees
that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP represents the Company solely and that
Investor has been advised to, and has had an opportunity to, consult with its
own attorney in connection with this Agreement.
3.12 AMENDMENT OF PRIOR AGREEMENT. This Agreement constitutes an
amendment of the Prior Agreement (except for Section 2.6 of the Prior Agreement
which remains in effect for the holders of Series B Preferred Stock and Series C
Preferred Stock only), and is cast in the form of an amendment and restatement
solely for the ease of the parties hereto.
[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.
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
INVESTORS:
ROSEWOOD CAPITAL, L.P.
By: Rosewood Associates L.P., 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: ____________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
BROPHAR INVESTOR PARTNERS
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
General Partner
Address: c/o Xxxxx Xxxxxxx,
Xxxxxxx, Phleger & Xxxxxxxx
000 Xxxx "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Fax No: (000) 000-0000
PRUDENTIAL 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: ____________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------
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: ___________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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
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
INVESTORS' RIGHTS 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
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
Address: c/o Rubios Restaurants, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No: ____________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
/s/ Xxx Xxxxxxx
-----------------------------------
Xxx Xxxxxxx
Address: Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000
Fax No: ___________________
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: 000-000-0000
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
Fax No: 000-000-0000
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax No: ____________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Address: 0000 Xxxx Xxxx
Xx Xxxxx, XX 00000
Fax No: 000-000-0000
X.X. XXXXXXX CO., INC. PROFIT SHARING
TRUST FOR THE BENEFIT OF XXXX XXXXXXX
XXXXXX & XXXX XXXXXXX XXXXXX
By: /s/ Xxxx Xxxxxx
------------------------------
Trustee
Address: c/o Xxxx Xxxxx
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
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
Address: 00 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Fax No: __________________
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 X. Xxxxxxx
----------------------------
Title: Partner
----------------------------
Address: Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax No: ___________________
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx
Address: 00000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax No.: ____________________
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Fax No.: ____________________
EVEREN CLEARING CORP. CUST.
FBO: XXXXX X. XXXXXXX XXX
By: /s/ Xxxxx Xxxxxxx
----------------------------
Title:
----------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, 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: __________________
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
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
EVEREN CLEARING CORP. CUST.
FBO: XXXX X. XXXX XXX
By: /s/ Xxxx Xxxx
------------------------------
Title:
----------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
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, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
EVEREN CLEARING CORP. CUST.
FBO: XXXXX X. XXXX XXX
By: /s/ Xxxxx Xxxx
------------------------------
Title:
----------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
EVEREN CLEARING CORP. CUST.
FBO: XXXXXX XXXX XXX
By: /s/ Xxxxxx Xxxx
------------------------------
Title:
----------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No: (000) 000-0000
XXXXX X. XXXX AND XXXXXX XXXX JTWROS
/s/ Xxxxx Xxxx
-----------------------------------
Xxxxx X. Xxxx
/s/ Xxxxxx Xxxx
-----------------------------------
Xxxxxx Xxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
/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
/s/ J. Xxxxxxx Xxxxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxxxx
Address: Nations Bank Xxxxxxxxxx Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: (000) 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx, Trustee for Xxxxxx 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
INVESTORS' RIGHTS AGREEMENT]
Acknowledged and agreed solely
with respect to Section 2.4:
XXXXX XXXXX AND XXXXX XXXXX AS
TRUSTEES OF THE XXXXX XXXXX AND
XXXXX XXXXX FAMILY TRUST
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, Trustee
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, Trustee
Address: 0000 Xxx Xxxxxxxxxx
Xxx Xxx, XX 00000
Fax No: ___________________
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 Xxxxxx
Xxx Xxxxx, XX 00000
Fax No: ___________________
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
XXXXXX X. XXXXXX AND XXXXXX
X. XXXXXX AS TRUSTEES OF THE
XXXXXX AND XXXXXX XXXXXX TRUST
By: /s/ Xxxxxx 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 THE TRUSTEE OF
THE XXXXXX XXXXX TRUST
By: /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx, Trustee
Address: 1724 Folus
Xxxxxxxxx, XX 00000
Fax No: ___________________
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
XXXXXX XXXXXX AS THE 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
[SIGNATURE PAGE TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
SCHEDULE A
INVESTORS
Rosewood Capital, X.X.
Xxxxxxx Family Trust dated December 8, 1988
Brophar Investor Partners
R. Xxxx Xxxxxxxx
Xxx Xxxxxx
T. Xxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxx Xxxxx
Prudential Securities, Custodian for Xxxxx X. Xxxxxxxx XXX
Xxxxx X. Xxxxxxxx
UMB Bank, n.a., Trustee of the Xxxxxxx, Phleger & Xxxxxxxx Savings Plan f/b/o
Xxxxxxx X. Xxxxxxxx XXX
UMB Bank, n.a., Trustee of the Xxxxxxx, Phleger & Xxxxxxxx Savings Plan f/b/o
Xxxx X. Xxxxx XXX
UMB Bank, n.a., Trustee of the Xxxxxxx, Phleger & Xxxxxxxx Savings Plan f/b/o
Xxxxx X. Xxxxxxx XXX
UMB Bank, n.a., Trustee of the Xxxxxxx, Phleger & Xxxxxxxx Savings Plan f/b/o
Xxxx X. Xxxxxxxxx XXX
UMB Bank, n.a., Trustee of the Xxxxxxx, Phleger & Xxxxxxxx Savings Plan f/b/o
Xxx Xx Xxxxx XXX
Xxxxx Xxxxxxx
Xxx Xxxxxxx
Farallon Capital Partners, L.P..
A-1
Farallon Capital Institutional Partners, L.P.
Farallon Capital Institutional Partners II, L.P.
Farallon Capital Institutional Partners III, L.P.
RR Capital Partners, L.P.
Lic. Xxxxxxx Xxxxxxxx R.R.
W.A. & H. Investment, L.L.C.
Xxxxxx X. Xxxxxx
Xxxxx and Xxxxxx Xxxxxx
Xxxx and Xxxxx Xxxxx
X.X. Xxxxxxx Co., Inc. Profit
Sharing Trust for the benefit of
Xxxx Xxxxxxx Xxxxxx & Xxxx Xxxxxxx Xxxxxx
XXXXXX Clearing Corp. Cust.
FBO Xxxxx X. Xxxxxxx XXX
Xxxxxx X. & Xxxxxx Xxxxxxx JTWROS
Xxxxx and Xxx Xxxxxxx
Xxxxx X. Xxxxxxxx
R. Xxxx Xxxxxxxx
EVEREN Clearing Corp. Cust.
FBO: Xxxx X. Xxxx XXX
Xxxxxx X. Xxxxxxx
EVEREN Clearing Corp. Cust.
FBO: Xxxxxx X. Xxxxxxx XXX
XXXXXX Clearing Corp. Cust.
FBO: Xxxxx X. Xxxx XXX
XXXXXX Clearing Corp. Cust.
FBO: Xxxxxx Xxxx XXX
A-2
Xxxxx X. Xxxx & Xxxxxx Xxxx JTWROS
T. Xxxxx and Xxxxxxxx Xxxxxxxxx
Xxxxxxx and Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxxxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxx Xxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxxx Xxxxxxx XX
Xxxxxxx Xxxxxxxx
X. Xxxxxxxx Xxxxxxxxxx
Xxxxxx Family Trust
A-3
SCHEDULE 2.4
XXXXX FAMILY MEMBERS
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 Victoria Trust
Xxxxxx Xxxxx as the Trustee of the Xxxxxx Xxxxx Trust
Xxxxxx Xxxxxx as the Trustee of the Trust FBO Xxxxx Xxxxx
A-4
