EXHIBIT 10.1
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT ("AGREEMENT") is made and entered into this
29th day of December, 2005, by and among Buffets Holdings, Inc., a Delaware
corporation (the "COMPANY"), Xxxxxx-Xxxxxx Investments, L.P., a Delaware limited
partnership ("XXXXXX-XXXXXX"), the other stockholders of the Company executing
this Agreement and designated as Other Investors (the "OTHER INVESTORS"), the
management stockholders of the Company executing this Agreement and designated
as Management Stockholders (the "MANAGEMENT STOCKHOLDERS," and together with
Xxxxxx-Xxxxxx and the Other Investors, the "CONTRIBUTORS") and Buffets
Restaurants Holdings, Inc., a Delaware corporation ("HOLDCO").
R E C I T A L S
WHEREAS, the Contributors and Holdco have entered into a Stockholders'
Agreement, dated the date hereof, as amended, supplemented or modified from time
to time (the "HOLDCO STOCKHOLDERS AGREEMENT");
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Contributors propose to contribute to Holdco all of their shares of the
Company's common stock, par value $0.01 per share (the "COMPANY COMMON STOCK"),
as set forth opposite the applicable Contributor's name on EXHIBIT A hereto, and
Holdco proposes to issue to each Contributor, in exchange for such contribution,
a like amount of shares of common stock of Holdco, par value $0.01 per share
(the "HOLDCO COMMON STOCK"), as set forth opposite the applicable Contributor's
name on EXHIBIT A hereto;
WHEREAS, the Contributors intend that the exchange of Company Common
Stock for Holdco Common Stock be a transaction that is described in Sections 351
and 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended from time to
time;
WHEREAS, the Contributors and the Company have entered into the
Stockholders' Agreement of the Company, dated September 29, 2000, as amended,
supplemented or modified from time to time (the "COMPANY STOCKHOLDERS'
AGREEMENT");
WHEREAS, pursuant to Section 7.3 of the Company Stockholders'
Agreement, the Company Stockholders' Agreement may be amended only by a written
instrument duly executed by Xxxxxx-Xxxxxx, the Company and holders of more than
50% of the shares of Company Common Stock not held by Xxxxxx-Xxxxxx;
WHEREAS, the parties to this Agreement include Xxxxxx-Xxxxxx, the
Company and holders of more than 50% of the shares of Company Common Stock not
held by Xxxxxx-Xxxxxx; and
WHEREAS, solely with respect to the Contribution (as defined below),
the Contributors and the Company desire to amend the Company Stockholders'
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Agreement to exempt the Contribution from any and all transfer restrictions in
the Company Stockholders' Agreement, including, without limitation, the transfer
restrictions in Section 3 thereof and the right of first refusal in Section 4
thereof;
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I.
CONTRIBUTION; ISSUANCE OF HOLDCO COMMON STOCK
1.1. CONTRIBUTION OF COMPANY COMMON STOCK TO HOLDCO. On the terms
and subject to the conditions contained in this Agreement, at the Closing (as
defined in Section 2.1(a)), each Contributor agrees to contribute, assign,
transfer, convey and deliver to Holdco, and Holdco agrees to accept from the
Contributors, the amount of Company Common Stock set forth opposite the
applicable Contributor's name on EXHIBIT A hereto (the "CONTRIBUTION").
1.2. ISSUANCE OF HOLDCO COMMON STOCK BY HOLDCO. On the terms and
subject to the conditions contained in this Agreement, at the Closing, in
consideration of the Contribution, Holdco agrees to issue, sell and deliver to
the Contributors, the number of shares of Holdco Common Stock set forth opposite
the applicable Contributor's name on EXHIBIT A hereto.
1.3. AMENDMENT TO THE COMPANY STOCKHOLDERS' AGREEMENT.
(a) Notwithstanding anything to the contrary in the Company
Stockholders' Agreement, the Company Stockholders' Agreement is hereby amended
to exempt the Contribution from any and all transfer restrictions, including,
without limitation, the transfer restrictions in Section 3 thereof and the right
of first refusal in Section 4 thereof.
(b) The Transferee Agreement set forth as EXHIBIT B hereto, is
hereby approved as the Transferee Agreement whereby Holdco joins the Company
Stockholders' Agreement as a Sponsor. To the extent that the Company
Stockholders' Agreement is inconsistent with the Transferee Agreement, the
Company Stockholders' Agreement is hereby amended to comply with the provisions
of the Transferee Agreement.
1.4. CONTINUING EFFECT OF THE COMPANY STOCKHOLDERS' AGREEMENT. This
Agreement shall not constitute an amendment or modification of any other
provision of the Company Stockholders' Agreement not expressly referred to
herein. Except as expressly amended or modified herein, the provisions of the
Company Stockholders' Agreement are and shall remain in full force and effect.
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ARTICLE II.
CLOSING
2.1. CLOSING.
(a) The closing (the "CLOSING") of the Contribution and the
issuance of the Holdco Common Stock as contemplated by this Agreement shall take
place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, at 10:00 a.m., local
time, on the date hereof, or at such other location or date as the parties may
mutually agree. The date of the Closing is hereinafter referred to as the
"CLOSING DATE".
(b) Except as set forth in Section 5.1, at the Closing, each
Contributor shall deliver to Holdco stock certificates representing the amount
of Company Common Stock set forth opposite the applicable Contributor's name on
EXHIBIT A hereto and related blank stock powers.
(c) At the Closing, Holdco shall duly reflect in the Holdco books
and records the ownership by the Contributors of the number of shares of Holdco
Common Stock set forth opposite the applicable Contributor's name on EXHIBIT A
hereto.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS
Each Contributor hereby represents and warrants to Holdco as follows:
3.1. DUE ORGANIZATION AND AUTHORITY. Each Contributor that is an
entity is duly organized, validly existing and in good standing under the laws
of its state of incorporation, having full right, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
3.2. AUTHORIZATION AND VALIDITY OF AGREEMENT. The Contributor has
taken all action necessary in order to authorize, execute and deliver this
Agreement and to consummate the transactions contemplated hereby and to perform
the acts contemplated on its part hereunder. This Agreement is a valid and
binding agreement of the Contributor enforceable against it in accordance with
the terms of this Agreement, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
3.3. GOVERNMENTAL APPROVALS AND CONSENTS. No material
authorizations, consents, approvals, orders, notices, filings, registrations,
qualifications and exemptions of, with or from, or other actions ("APPROVALS")
are required by any
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Governmental Authority to which a Contributor may be subject in connection with
the execution and delivery by the applicable Contributor of this Agreement, the
performance by the applicable Contributor of its obligations hereunder and the
consummation of the transactions contemplated hereby. "GOVERNMENTAL AUTHORITY"
means any court, administrative agency or commission, including, without
limitation, the Securities and Exchange Commission, or other federal, state or
local governmental authority or instrumentality of any nation and any agencies,
departments or subdivisions thereof.
3.4. TITLE TO SECURITIES. Each Contributor has good, valid and
marketable title to the shares of Company Common Stock set forth opposite the
applicable Contributor's name on EXHIBIT A hereto, free and clear of any Liens
(as defined below) whatsoever (other than Liens to be released on the date
hereof) and, upon delivery of such shares of Company Common Stock at the Closing
as herein provided, Holdco will acquire good, valid and marketable title
thereto, free and clear of all liens, pledges, mortgages, security interests,
claims, leases, charges, options, rights of first refusal, transfer restrictions
under any stockholder or similar agreement, encumbrances, other title defects
(including encroachments and survey defects) or any other restrictions or
limitations whatsoever (collectively, "LIENS"), other than any Liens created by
this Agreement, the Company Stockholders' Agreement or the Warrant Agreement,
dated as of September 29, 2000, by and among the Company and each warrantholder
who is a party thereto.
3.5. INVESTMENT REPRESENTATIONS.
(a) Each Contributor is acquiring the shares of Holdco Common
Stock set forth opposite its name on EXHIBIT A hereto for its own account for
investment and not with a view to distribution.
(b) Each Contributor is an "accredited investor" as defined in
Rule 501(a) as currently in effect under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the "SECURITIES ACT").
(c) Each Contributor has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in Holdco, and has so
evaluated the merits and risks of such investment.
(d) Each Contributor is able to bear the economic risk of an
investment in Holdco and is able to afford a complete loss of such investment.
(e) Each Contributor understands and acknowledges that (i) the
shares of Holdco Common Stock are being offered and sold to it without
registration under the Securities Act by reason of reliance upon certain
exemptions therefrom and (ii) the availability of such exemptions depends, in
part, on the foregoing representations set forth in this Section 3.5.
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(f) Each Contributor acknowledges and agrees that neither it nor
any of its Affiliates (as defined below) will, directly or indirectly, offer,
sell, transfer, assign, exchange or otherwise dispose of any shares of Holdco
Common Stock except (i) in accordance with applicable state and federal
securities laws or pursuant to an exemption thereto and (ii) if applicable, in
accordance with the terms of the Holdco Stockholders' Agreement. "AFFILIATE"
means any person or entity directly or indirectly controlling, controlled by or
under common control with the applicable Contributor. For the purposes of the
foregoing, "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of the
applicable Contributor, whether through the ownership of voting securities, by
contract or otherwise.
(g) Neither any Contributor nor any of its respective Affiliates
or representatives has engaged in any form of general solicitation or general
advertising with respect to the shares of Holdco Common Stock.
3.6. NO BROKERS. There are no brokerage commissions, finder's fees
or similar fees or commissions payable in connection with the transactions
contemplated hereby based on any agreement, arrangement or understanding with
the Contributors or any action taken by the Contributors.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF HOLDCO
Holdco hereby represents and warrants to the Contributors as follows:
4.1. DUE ORGANIZATION AND AUTHORITY. Holdco is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware, having full corporate right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
4.2. AUTHORIZATION AND VALIDITY OF AGREEMENT. Holdco has taken all
action necessary in order to authorize, execute and deliver this Agreement and
to consummate the transactions contemplated hereby and to perform the acts
contemplated on its part hereunder. This Agreement is a valid and binding
agreement of Holdco enforceable against it in accordance with the terms of this
Agreement, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity). When issued, the shares of
Holdco Common Stock will be duly authorized, validly issued, fully paid and
nonassessable.
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ARTICLE V.
COVENANTS
5.1. DELIVERY OF CERTIFICATES. If a Contributor is unable to
deliver all of its applicable stock certificates and blank stock powers at the
Closing, then no later than 10 days following the Closing, each such Contributor
shall deliver to Holdco stock certificates and executed blank stock powers
representing the number of shares of Company Common Stock set forth opposite the
applicable Contributor's name on EXHIBIT A hereto.
5.2. BENEFICIAL OWNERSHIP. Each Contributor acknowledges and agrees
that, as of the Closing, Holdco shall be deemed the beneficial owner of the
Contributor's shares of Company Common Stock and the Contributors shall not
exercise any rights of ownership relating to such shares of Company Common
Stock.
5.3. INDEMNITY. Each Contributor agrees at all times to indemnify,
save and hold harmless Holdco, any transfer agent or registrar for Holdco and
its affiliates, subsidiaries, directors, officers, employees, agents,
stockholders and members, and all other stockholders of Holdco and their
successors and assigns (each, an "INDEMNITEE") from and against any and all
claims, losses, liabilities, damages, costs or expenses (including reasonable
attorney's fees and expenses) sustained or incurred by the Indemnitee and
arising of any breach or violation by such Contributor of Section 5.1 or 5.2.
ARTICLE VI.
MISCELLANEOUS
6.1. HEADINGS AND CAPTIONS. All headings and captions contained in
this Agreement are inserted for convenience only and shall not be deemed a part
of this Agreement.
6.2. COUNTERPARTS. This Agreement may be executed in two or more
separate counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one Agreement.
6.3. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE
WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER
AS PLAINTIFF,
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DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED
UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE.
6.4. BINDING EFFECT; NO THIRD-PARTY BENEFICIARY. This Agreement
shall inure to the benefit of and be binding upon each of the parties hereto.
Nothing in this Agreement, express or implied, is intended or shall be construed
to confer upon, or give to, any person, firm, corporation or other entity other
than the parties hereto any remedy or claim under or by reason of this Agreement
or any terms or conditions hereof, and all of the terms, conditions, promises
and agreements contained in this Agreement shall be for the sole and exclusive
benefit of the parties hereto.
6.5. ASSIGNABILITY. Neither party hereto may assign any of its
rights under this Agreement without the prior written consent of the other
party.
6.6. AMENDMENT; WAIVER. No provision of this Agreement may be
amended, waived or otherwise modified except by an instrument in writing
executed by each of the Company, the Contributors and Holdco. No failure or
delay on the part of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any party at law, in equity or otherwise.
6.7. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement. If a provision of this Agreement is held to be invalid and
the rest of this Agreement is not invalidated, each party shall use all
reasonable efforts to effect as far as practicable and valid under applicable
law a new provision to achieve the purpose of such invalidated provision.
6.8. FURTHER ASSURANCES. The parties hereto will each use best
efforts to cause all conditions to its obligations hereunder to be timely
satisfied and to perform and fulfill all obligations on its part to be performed
and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be effected substantially in accordance
with its terms as soon as reasonably practicable. Each party shall deliver such
further documents and take such other actions as may be necessary or appropriate
to consummate or implement the transactions contemplated hereby or to evidence
such events or matters.
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6.9. ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements between the parties with respect to the subject matter hereof and
contains the entire agreement between the parties with respect to such subject
matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have hereto set their hands as
of the day and year first written above.
BUFFETS HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Regional Vice President
XXXXXX-XXXXXX INVESTMENTS, L.P.
By: Golconda Holdings Inc., its general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: President
BUFFETS RESTAURANTS HOLDINGS, INC.
By: /s/ R. Xxxxxxx Xxxxxxx, Jr.
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Name: R. Xxxxxxx Xxxxxxx, Jr.
Title: Chief Executive Officer
S-1 - Signature Page to Contribution Agreement
OTHER INVESTORS:
SENTINEL CAPITAL PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Managing Partner
/S/ XXXXXX XXXXXXXXX
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XXXXXX XXXXXXXXX
/s/ C. XXXXXX XXXXX
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C. XXXXXX XXXXX
THE WICHARD TRUST DATED NOVEMBER 25, 1994
By: /s/ Xxxx X. Xxxxxxx TTEF
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Name: Xxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxxxxxxx Xxxxxxx TTEF
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Name: Xxxxxxxxx Xxxxxxx
Title: Trustee
S-2 - Signature Page to Contribution Agreement (Other Investors)
/s/ XXX X. XXXXXX
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XXX X. XXXXXX
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
XXXX X. XXXXXX
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
XXXX X. XXXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxxx, Trustee
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Name: Xxxxxxx X. Xxxxxx
Title: Trustee
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
EVENTYR INVESTMENTS LIMITED PARTNERSHIP
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: General Partner
S-3 - Signature Page to Contribution Agreement (Other Investors)
MANAGEMENT STOCKHOLDERS:
/s/ XXXXXX X. XXXXXXXX III
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XXXXXX X. XXXXXXXX III
/s/ XXXXXXX X. XXXXXXX, XX.
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XXXXXXX X. XXXXXXX, XX.
/s/ XXXX X. XXXXXXXX
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XXXX X. XXXXXXXX
/s/ XXXXXXXXX THOUSAND
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XXXXXXXXX THOUSAND
/s/ XXXXX XXXX
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XXXXX XXXX
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
/s/ XXXX XXXXXX
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XXXX XXXXXX
/s/ XXXXX XXXXXX
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XXXXX XXXXXX
/s/ XXXXX XXX
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XXXXX XXX
/s/ XXXXXXX XXXXXXXXX
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XXXXXXX XXXXXXXXX
/s/ XXXXXXX XXXXXXXXXX
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XXXXXXX XXXXXXXXXX
/s/ XXXX XXXXXXXXX
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XXXX XXXXXXXXX
/s/ XXXX XXXXXXXX
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XXXX XXXXXXXX
/s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
S-4 - Signature Page to Contribution Agreement (Management Stockholders)
EXHIBIT A
CONTRIBUTION AND ISSUANCE
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Number of Shares of Number of Shares of
Company Common Holdco Common
Contributor Stock Contributed Stock Issued
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Xxxxxx-Xxxxxx Investments, L.P. 2,501,438 2,501,438
Sentinel Capital Partners II, L.P. 225,106 225,106
Xxxxxxx X. Xxxxxxx, Xx. 89,375 89,375
Xxx X. Xxxxxx 65,012 65,012
Xxxx X. Xxxxxxxx 40,625 40,625
Xxxx X. Xxxxxx 33,340 33,340
Xxxx X. Xxxxxx Trust 33,339 33,339
Eventyr Investments Limited Partnership 30,422 30,422
Xxxx X. Xxxxxx Trust 22,506 22,506
Xxxxxx X. Xxxxxxxx III 20,000 20,000
Xxxx Xxxxxxxx 20,000 20,000
C. Xxxxxx Xxxxx 16,250 16,250
Xxxx X. Xxxxxx 10,833 10,833
The Wichard Trust Dated November 25, 1994 5,628 5,628
Xxxxx Xxxxxx 5,000 5,000
Xxxxx Xxx 5,000 5,000
Xxxxxx Xxxxxxxxx 4,610 4,610
Xxxxx Xxxxxxx 3,125 3,125
Xxxxxxxxx Thousand 3,125 3,125
Xxxx Xxxxxxxxx 3,000 3,000
Xxxxxxx Xxxxxxxxxx 2,650 2,650
Xxxx Xxxxxx 2,500 2,500
Xxxxxxx Xxxxxxxxx 2,500 2,500
Xxxxx X. Xxxxxxx 2,251 2,251
Xxxxx Xxxx 1,125 1,125
EXHIBIT B
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FORM OF TRANSFEREE AGREEMENT
This Transferee Agreement (the "Agreement") is executed by the
transferee whose signature appears below (the "Transferee") pursuant to the
terms of the Stockholders' Agreement, dated as of September 29, 2000 (the
"Stockholders' Agreement") by and among Buffets Holdings, Inc., a Delaware
corporation (the "Company"), Xxxxxx-Xxxxxx Investments, L.P., a Delaware limited
partnership ("Xxxxxx-Xxxxxx"), the other investors executing the Stockholders'
Agreement (the "Other Investors") and the individuals executing the
Stockholders' Agreement and designated as Management Stockholders (the
"Management Stockholders"). Capitalized terms used herein shall have the meaning
ascribed to them in the Stockholders' Agreement. By execution of this Agreement,
Transferee hereby agrees as follows:
1. ACKNOWLEDGMENT. Transferee acknowledges (a) that it is acquiring
certain shares of the Common Stock, from Xxxxxx-Xxxxxx and other Stockholders
subject to the terms, limitations and conditions of the Stockholders' Agreement
and (b) that Transferee is an assignee of Xxxxxx-Xxxxxx.
2. AGREEMENT. Transferee (a) agrees that such shares of Common
Stock to be acquired by Transferee shall be bound by and subject to the terms of
the Stockholders' Agreement pursuant to the terms thereof and (b) hereby adopts
the Stockholders' Agreement with the same force and effect as if it was
originally a party thereto and a Stockholder thereunder. If this Transfer is
being made to a Permitted Transferee (other than in connection with a
distribution being made by the Sponsor to its members, partners or shareholders)
and immediately prior to such time during the term of the Stockholders'
Agreement the Transferee shall cease to qualify as a Permitted Transferee under
the Stockholders' Agreement, such Transferee shall transfer all such shares of
Common Stock to the Stockholders from which such transfer was made and such
Stockholders shall then be bound by and entitled to the benefits of the
Stockholders' Agreement.
3. STATUS OF TRANSFEREE. Transferee shall hold the status of
Xxxxxx-Xxxxxx subject to all the terms, conditions and limitations of
Xxxxxx-Xxxxxx under the Stockholders' Agreement and the shares held by
Transferee will be deemed to be shares held by a Sponsor.
4. NOTICE. Any notice required by the Stockholders' Agreement shall
be given to Transferee at the address listed below Transferee's signature below.
EXECUTED AND DATED this __th day of December, 2005.
TRANSFEREE:
BUFFETS RESTAURANTS HOLDINGS, INC.
By:
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Name:
Title:
Address:
