RECITALS
EXHIBIT 10.9
XXXXX'X RESTAURANTS, INC.
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 2 ("Amendment") to the Amended and Restated
Investors' Rights Agreement, as amended (the "Agreement"), dated November 19,
1997, is made as of this 13th day of May, 1998 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 investor listed on EXHIBIT A
attached hereto, (the "New Investor"). 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 Investor a
warrant to purchase shares of the Company's Series D Preferred Stock.
The Existing Investors desire for the New Investor 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 the New Investor 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 Investor hereby enters into and becomes a party to the
Agreement. SCHEDULE A to the Agreement is amended to include the New Investor.
2. EFFECT OF AMENDMENT.
Except as amended and set forth above, the Agreement shall
continue in full force and effect.
3. COUNTERPARTS.
This Amendment may be executed in any number of counterparts,
each which will be deemed an original, and all of which together shall
constitute one instrument.
4. 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.
5. ENTIRE AGREEMENT.
This Amendment, together with the Agreement, constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof.
6. GOVERNING LAW.
This Amendment shall be governed by and construed under the
laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
[Remainder of This Page Intentionally Left Blank]
2
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
Fax No.: (000) 000-0000
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
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
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
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
By: /s/ Xxxxxx 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
--------------------------------
Xxxxx Xxxxx, Trustee
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx, Trustee
Address: 0000 Xxx Xxxxxxxxxx
Xxx Xxx, XX 00000
Fax No:
-------------------
NEW INVESTOR:
FSC CORP.
By: /s/ illegible
-------------------------------
Title: Vice President
-----------------------------
Address: c/o BancBoston Capital
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx, XX 00000
Fax No: (000) 000-0000
EXHIBIT A
NEW INVESTOR
FSC CORP.
