EXHIBIT 10.6
XXXXX'X RESTAURANTS, INC.
AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
This Amendment No. 1 ("Amendment") to the Series D Preferred Stock Purchase
Agreement (the "Agreement"), dated November 19, 1997, is made as of this 3rd day
of December, 1997 by and among XXXXX'X RESTAURANTS, INC., a Delaware corporation
(the "Company"), the investors listed on SCHEDULE A of the Agreement (the
"Existing Investors") and the investors listed on EXHIBIT A attached hereto,
(the "New Investors"). Capitalized terms used herein which are not defined
herein shall have the definition ascribed to them in the Agreement.
RECITALS
The Company desires to sell and issue to the New Investors and the New
Investors desire to purchase from the Company, shares of the Company's Series D
Preferred Stock pursuant to the Agreement.
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 and the Company are willing to enter into this Amendment to permit
each of the New Investors to become a party to the Agreement, as amended.
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. ADDITIONAL PARTIES TO THE AGREEMENT.
The New Investors hereby enter into and become parties to the
Agreement. SCHEDULE A to the Agreement is amended to include the New Investors.
2. AMENDMENTS TO AGREEMENT.
2.1 Section 1.3 of the Agreement is amended in its entirety to read
as follows:
"1.3 SUBSEQUENT SALE SERIES D PREFERRED STOCK. To the extent
that at least 1,250,949 but less than 1,403,843 shares of Series D Preferred
Stock are sold at the Closing, the Company may sell within sixty days following
the Closing any remaining shares of Series D Preferred Stock at a price not less
than $7.19454 per share to such other purchaser(s) as the Company's Board of
Directors shall select. Any purchaser in a subsequent closing shall execute a
counterpart signature page to this Agreement, the Amended and Restated
Investors' Rights Agreement and the Amended and Restated Stock Restriction
Agreement, and any additional sales of Series D Preferred Stock to Investors
shall be deemed to be made hereunder. The sale of any additional shares of
Series D Preferred Stock under this Section 1.3 occurring within sixty days
following the Closing shall not be subject to the right of first offer contained
in Section 2.4 of the Amended and Restated Investors' Rights Agreement to be
executed contemporaneously with this Agreement, which is attached hereto as
EXHIBIT B (the "Investors' Rights Agreement").
3. EFFECT OF AMENDMENT.
Except as amended and set forth above, the Agreement shall continue in full
force and effect.
4. 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
instrument.
5. SEVERABILITY.
If one or more provisions of this Amendment are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
6. 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.
7. 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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This Amendment is hereby executed as of the date first above written.
XXXXX'X RESTAURANTS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
EXISTING INVESTORS:
ROSEWOOD CAPITAL, L.P.
By: Rosewood Capital 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
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 AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE 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 AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE 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
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
XXXXXX X. XXXXX AND XXXXXX X. XXXXX,
CO-TRUSTEES OF THE XXXXXX X. XXXXX AND
XXXXXX X. XXXXX FAMILY TRUST
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Address: 0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax No.:
XXXXX XXXXX AND XXXXX XXXXX AS TRUSTEES
OF THE XXXXX XXXXX AND XXXXX XXXXX
FAMILY TRUST
By: /s/ Xxxxx Xxxxx, Trustee
-------------------------------
Xxxxx Xxxxx, Trustee
By: /s/ Xxxxx Xxxxx, Trustee
-------------------------------
Xxxxx Xxxxx, Trustee
Address: 0000 Xxx Xxxxxxxxxx
Xxx Xxx, XX 00000
Fax No.:
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
NEW INVESTORS:
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxx
Address: Nations Bank Xxxxxxxxxx
Securities
0 Xxxx 00xx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Fax No: ___________________
/s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------
X. Xxxxxxxx Xxxxxxxxxx
Address: Nations Bank Xxxxxxxxxx
Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: ___________________
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxxx, Trustee of the Xxxxxx
Family Trust
Address: Nations Bank Xxxxxxxxxx
Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax No: 000 000-0000
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
Exhibit A
NEW INVESTORS
Xxxx Xxxxxxxx
X. Xxxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxx
