AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
TO
This
AMENDMENT NO. 1 (this “Amendment”) to
the
Stockholders Agreement is entered into as of this 26th day of December,
2007 by
and between Chicken Acquisition Corp., a Delaware corporation (the “Company”), and
Trimaran Pollo Partners, L.L.C., a Delaware limited liability company (“Trimaran”).
Capitalized terms used herein and not otherwise defined in this Amendment
shall
have the meanings ascribed to such term in the Agreement (as defined
below).
RECITALS
WHEREAS,
on November 18, 2005, the Company entered into the Stockholders Agreement
(the
“Agreement”)
with Trimaran and the individuals set forth in Schedule A thereto;
WHEREAS,
the Unit Purchase Agreement (the “Unit Purchase
Agreement”), the first closing under which was consummated on the date
hereof, by and among the Company, Trimaran, FS Equity Partners V, L.P.
(“FSEP V”), FS
Affiliates V, L.P. (“FSA V”) and
Xxxxx
Xxxxxxxx ("Xxxxxxxx" and
together with FSEP V and FSA V, "FS"), EPL
Intermediate, Inc. and El Pollo Loco, Inc. contemplates that FS may in
the
future receive a distribution of shares of the Company and become a party
to the
Agreement; and
WHEREAS,
in connection with the closing under the Unit Purchase Agreement, the Company,
Trimaran and the other stockholders signatory hereto desire to amend the
Agreement as set forth in this Amendment.
NOW
THEREFORE, in consideration of the foregoing recitals, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, Trimaran and
the
other stockholders signatory hereto, intending to be legally bound hereby,
agree
as follows:
1. Amendments.
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1.1.
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Definition
of FS.
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1.1.1. The
following definition shall be added
to Article I of the Agreement:
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“FS”
shall
mean FS Equity
Partners V, L.P. (“FSEP
V”) together with FS Affiliates V, L.P. (“FSA V”) and
Xxxxx Xxxxxxxx.
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1.2.
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Definition
of Permitted Transferee.
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1.2.1. The
definition of “Permitted Transferee”
shall be amended to add the following proviso at the end of such
definition:
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;
provided
further, that FS shall be a Permitted Transferee of Trimaran.
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1.3.
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Monitoring
and Management Agreement.
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1.3.1. Section
2.1 of the Agreement shall be
amended to read in its entirety as follows:
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The
parties hereto acknowledge and agree that the Company, Trimaran
Fund
Management, L.L.C. and Xxxxxxx Xxxxxx & Co. V, L.P. will enter into a
Monitoring and Management Agreement (the “Management
Agreement”), the form of which is attached as Exhibit A, which
provides for, among other things, the payment of monitoring fees
and
transaction fees by the Company, in exchange for advisory services
provided by the Trimaran Group and Xxxxxxx Xxxxxx & Co. V, L.P.
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1.4.
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Tag-Along
Rights.
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1.4.1. Section
4.1(a) of the Agreement shall be
amended in its entirety to read as follows:
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Until
the occurrence of a Qualified Public Offering, subject to the
restrictions
on Transfer set forth in Section 3.1 hereof and subject to Section
4.3
hereof, in the case of a proposed Transfer of five percent (5%)
or more of
the shares of Company Stock held by Trimaran (the “Transferring
Stockholder”) (a “Tag-Along
Transfer”), each other Stockholder (other than FS and its Permitted
Transferees) may exercise tag-along rights in accordance with
the terms,
conditions and procedures set forth herein (any Stockholder exercising
such rights, a “Tagging
Stockholder”). FS shall not have any rights with respect
this Section 4.1.
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1.5.
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Right
of First Offer.
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1.5.1. The
first sentence of Section 4.3 of the
Agreement shall be amended in its entirety to read as
follows:
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Following
the five year restriction period set forth in Section 3.1(a)(iii)
or if
the directors of the Company consent to an earlier Transfer pursuant
to
Section 3.1(a)(iii), upon the receipt by any Stockholder (other
than FS
and its Permitted Transferees or any member of the Trimaran Group)
(“Transferor”)
from a Third Party of a Bona Fide Offer to purchase or otherwise
acquire
(or if such Transferor has otherwise agreed to Transfer to a
Third Party
(other than in connection with a Qualified Public Offering))
all or a
portion of Transferor's shares of Company Stock (other than a
Transfer
pursuant to Section 4.2) which Transferor desires to accept,
Transferor
shall cause the Third Party's offer to be reduced to writing
and shall
provide a copy of such written notice of such Third Party's offer
(the
“ROFO
Notice”) to the Company, and the Company shall provide a copy
thereof to Trimaran.
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1.6.
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Drag-Along
Rights.
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1.6.1. Section
5.1(a) of the Agreement shall be
amended in its entirety to read as follows:
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If
(i) the Trimaran Group (the “Selling
Stockholders”) agree to Transfer, in any single or series of
related transactions, greater than fifty percent (50%) of the
aggregate number of the shares of Company Stock held by the Selling
Stockholders to a non-affiliated third party or (ii) the Selling
Members
(as defined in the LLC Agreement) exercise drag-along rights
pursuant to
Section 8.04 of the LLC Agreement (an “LLC
Drag”, and
(i) and (ii) collectively, “Drag-Along Transfers”), the
Selling Stockholders may exercise drag-along rights in accordance
with the
terms, conditions and procedures set forth herein; provided that
the
Selling Stockholders shall not have any such rights with respect
to shares
of Company Stock held by FS, and its Permitted Transferees.
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1.7.
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Demand
Registration Rights.
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1.7.1. Section
7.1(a) of the Agreement shall be
amended in its entirety to read as follows:
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Subject
to Section 7.1(c) below, upon written notice (a “Demand
Notice”)
either from (A) any member of the Trimaran Group after one hundred
eighty
(180) days following the occurrence of an initial public offering
(or such
shorter period pursuant to which the underwriters require the
Stockholders
to be “locked-up” pursuant to Section 7.12) or (B) FS after (x) 2 years
following, the occurrence of a Qualified Public Offering or (y)
any time
after the value of common stock of the Company, based on any
daily closing
price, previously sold to the public pursuant to registration
statements
or pursuant to Rule 144 under the Securities Act, exceeds $100
million,
but not before 2 years following an initial public offering of
the
Company’s equity securities under the Securities Act (each of (A) and
(B),
the “Requesting
Stockholder” and any Registrable Securities thereof to be included
in such demand, the “Demand
Securities”), the Company shall use all reasonable efforts to
effect at the earliest possible date and maintain a registration
of
Registrable Securities held by the Requesting Stockholder, its
Permitted
Transferees and any underwriter with respect to such Registrable
Securities, in accordance with the intended method or methods
of
disposition specified by the Requesting Stockholder (including,
but not
limited to, an offering on a delayed or continuous basis pursuant
to Rule
415 (or any successor rule) promulgated under the Securities
Act); provided, that FS collectively
shall be entitled to deliver an aggregate of up to two (2) Demand
Notices
and only for so long as FS holds 10% or more of the aggregate
outstanding
shares of common stock of the Company; provided further that
if, after
a Registration request pursuant to this Section 7.1 has been
made, the
Company has determined in good faith, after consultation with
its outside
legal counsel, that the filing of a Registration request would
require the
disclosure of material information which the Company has a bona
fide
business purpose for preserving as confidential, the Company
shall not be
obligated to effect a Registration pursuant to this Section 7.1
until the
earlier of (A) the date upon which such material information
is disclosed
to the public by the Company or ceases to be material, or
(B)
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forty-five
(45) days after such good faith determination; provided, further,
that the
Requesting Stockholder shall not have the right to utilize the
services of
an underwriter unless the anticipated gross proceeds of the shares
of
Company Stock to be offered exceed $25 million. The Requesting
Stockholder requesting a Registration under this Section 7.1
may, at any
time prior to the effective date of the registration statement
relating to
such Registration, revoke such request by providing written notice
thereof
to the Company, which revocation shall not count as a demand
registration
under this Section 1.7. Notwithstanding anything to the
contrary herein, FS's right to deliver a Demand Notice shall
be subject to
the following limitations and FS’s registration rights hereunder shall be
subject to the following:
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i.
the Company shall have the
right
to delay any Registration pursuant to a Demand Notice from FS under the
circumstances and subject to the provisions of Section 7.1(a) for a period
of no
more than 90 days from the date such Demand Notice (as opposed to 45 days);
provided that the Company may exercise each such delay right on only one
occasion;
ii.
a member of the Trimaran
Group may
elect with respect to one demand right to be exercised by any member of
the
Trimaran Group under this Agreement, to preempt any Demand Notice delivered
by
FS, by delivery of written notice to FS within ten (10) Business Days of
the
Trimaran Group's receipt of FS's Demand Notice, in which case FS shall
not be
deemed to have exercised its right to deliver a Demand
Notice. Notwithstanding any other provisions of this Agreement to the
contrary, FS shall have the right to participate in such demand and any
other
demand registration by any member of the Trimaran Group on a pro rata basis
with
the members of the Trimaran Group based on the number of shares sought
to be
included in such demand by FS and the members of the Trimaran Group and
any
member of the Trimaran Group shall have the right to participate in any
demand
registration by FS or its transferees on a pro rata basis with FS or its
transferees based on the number of shares sought to be included in such
demand
by FS or its transferees and the members of the Trimaran
Group.
1.7.2. Section
7.3(b)(i) shall be amended to
read in their entirety as follows:
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(i) first,
all Demand Securities
proposed to be sold by the Trimaran Group and all securities
proposed to
be sold by FS (if FS is then an Additional Stockholder) in such
offering
to be allocated pro rata among the Trimaran Group and FS based
on the
number of shares sought to be included in such demand by FS and
the
members of the Trimaran
Group.
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1.7.3. A
new Section 7.3A shall be added to the
Agreement as follows:
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Section
7.3A. FS
Form
S-3 Registration Rights. At the time set forth in
Section 8.07(b) of the LLC Agreement, as amended, and subject
to the terms
and conditions in Section 8.07 thereof as if FS were an Investor
Member
(as defined in therein), FS shall have Short Form Demand Rights
(as
defined therein) with respect to its shares of Company common
stock (the
"S-3
Registrable
Stock") for so long as the aggregate number of shares of S-3
Registrable Stock held by FS equals (A) an amount which
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1.8.
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A
new Section 12.2 shall be added
to the Agreement and Article XII shall be retitled EXCULPATION
AND
FINANCIAL INFORMATION.
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12.2
Financial
Information. For so long as FS holds 5% or more of the
aggregate outstanding shares of common stock of the Company,
FS shall be
entitled to receive the financial statements and reports of the
Company
that a member of Trimaran is entitled to receive pursuant to
Section 9.04
of the LLC Agreement, as amended; provided that FS complies with
all
applicable securities regulations, including without limitation,
if
applicable, by entering into a confidentiality agreement.
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1.9.
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Section
13.10(c) of the Agreement
shall be amended to read in its entirety as
follows:
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Neither
this Agreement nor any right, remedy, obligation or liability
arising
hereunder or by reason hereof shall be assignable by the Company
or any
Stockholder except in connection with Transfers of Company Stock
to
Permitted Transferees and other Persons permitted by the terms
of this
Agreement. Notwithstanding anything to the contrary in this Agreement,
FS
may assign its rights under this Agreement to a purchaser permitted
under
the LLC Agreement or this Agreement, as applicable, of 100% of
the units
collectively held by FS (exclusive of Xxxxxxxx who shall not
retain any
rights under this Agreement after such Transfer) in Trimaran
or 100% of
the shares of common stock of CAC that FS collectively holds
provided
that
at the time of such assignment and purchase, FS collectively
has
beneficial ownership (as defined under Rule 13d-3 of the Exchange
Act) of
at least 10% of the aggregate outstanding shares of CAC common
stock.
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2. Reference
to and Effect upon the Agreement. Except as specifically set
forth above, the Agreement shall remain in full force and effect and is
hereby
ratified and confirmed. The execution, delivery and effectiveness of
this Amendment shall not constitute an amendment of any provision of the
Agreement, except as specifically set forth herein. The Company and
Trimaran
will not consent to the revision, amendment or alteration of the Agreement
in a
manner that would have a material adverse effect on the rights of FS without
the
consent of FS.
3. Headings. The
section headings contained in this Amendment are solely for the purpose
of
reference, are not part of the agreement of the parties hereto, and shall
not in
any way affect the meaning or interpretation of this Amendment.
4. Counterparts;
Effectiveness. This Amendment may be signed in any number of
counterparts, each of which shall be deemed an original, with the same
effect as
if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
[Remainder
of page intentionally left
blank]
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Amendment as of the date first written above.
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CHICKEN
ACQUISITION CORP.
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By:
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/s/ Xxxxxxx X. Xxxxxx | |||
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President
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TRIMARAN
POLLO PARTNERS, L.L.C.
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By:
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/s/ Xxxx X. Xxxxxx | |||
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Name:
Xxxx X. Xxxxxx
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Title:
Vice President
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