AMENDMENT NO. 1
TO
MANAGEMENT SUBSCRIPTION AGREEMENT
THIS AMENDMENT NO. 1 TO MANAGEMENT SUBSCRIPTION AGREEMENT
(this "Amendment No. 1") is dated as of November __, 1996, by and
among AmeriKing, Inc., a Delaware corporation (the "Company") and
the persons whose names appear on the signature pages hereto
(collectively, the "Stockholders").
W I T N E S S E T H
WHEREAS, the Company and the Stockholders entered into a Management
Subscription Agreement, dated as of September 1, 1994 (the "Management
Subscription Agreement"), pursuant to which the Stockholders subscribed for the
purchase of certain securities of the Company, including shares of common stock
of the Company; and
WHEREAS, pursuant to the terms of the Recapitalization Agreement, of
even date herewith, by and among the Company and the stockholders of the
Company who appear on the signature pages thereto, (i) the existing classes of
common stock have been reclassified and (ii) the reclassified common stock has
been split 1,000-to-1; and
WHEREAS, the Company and the Stockholders each acknowledge that they
will benefit and desire to amend the Management Subscription Agreement in
accordance with the terms of this Amendment No. 1.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
A G R E E M E N T
SECTION 1. Amendment. Effective as of the date hereof,
Section 1 of the Management Subscription Agreement shall be
deleted in its entirety and replaced with the following:
1. Stock Subscriptions.
(a) Each Stockholder herewith subscribes for the
number of shares set forth opposite Stockholder's name in Exhibit 1
hereto as (i) the Company's Common Stock, $.01 par
value per share, (the "Common Stock"), (ii) the Company's Class A2
Preferred Stock, $.01 par value per share, (the "Class A2 Preferred
Stock"), (iii) the Company's Class B Preferred Stock, $.01 par value
per share, (the "Class B Preferred Stock"), (iv) the Company's 12.75%
Notes due 2004 (the "Notes"), (v) stock options, substantially in the
form of Exhibit 2 hereto (the "Options") to purchase shares of Common
Stock, all as more specifically described in Exhibit 1. The purchase
price of the Common Stock is $.10 per share, the purchase price for
the Preferred Stock is $1,000 per share and the purchase price for the
Notes is the initial principal amount thereof. The Options are being
allocated to the persons listed on Exhibit 1 without initial
consideration. For purposes of this Agreement and as specifically set
forth on Exhibit 1, the Common Stock of certain Stockholders shall be
allocated in two sets. Set 1 securities shall consist of certain
shares of Common Stock ("Set 1 Securities"). Set 2 securities shall
consist of the Notes, Class A2 Preferred Stock and remaining shares of
Common Stock acquired by such Stockholders ("Set 2 Securities"), all
as set forth in detail in Exhibit 1. Notwithstanding the foregoing,
the Company acknowledges and accepts that Xxxxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxx shall purchase the Securities
designated as Set 1 Securities opposite their names for cash in the
amounts set forth on Exhibit 1. The Company also acknowledges and
accepts that the Stockholders acquiring Set 2 Securities shall receive
the Set 2 Securities in exchange for the assets acquired by the
Company pursuant to the Purchase and Sale Agreements, dated as of
September 1, 1994, between the Company and each of the Stockholders
listed on Exhibit 1 who are receiving Set 2 Securities. The Securities
are denoted as Set 1 Securities and Set 2 Securities for purposes of
this section and the repurchase provisions in Section 8. The Options
are neither Set 1 Securities nor Set 2 Securities, and the repurchase
provisions of Section 8 shall not apply to the Options.
SECTION 2. Effect of this Amendment No. 1 on the Other
Terms of the Management Consulting Agreement. Except as
expressly amended and modified herein, all other terms of each of
the Xxxxxxxxx Option Agreement and the Xxxxxxx Option Agreement
shall remain in full force and effect as originally made and
entered into by the parties thereto.
SECTION 3. Governing Law. This Amendment No. 1 shall be
governed by and construed in accordance with the laws of the
State of Delaware (excluding provisions relating to choice of
law).
-2-
SECTION 4. Necessary Documents. The parties hereto agree
to execute or cause to be executed at any time, any and all other
documents or instruments necessary to carry out the terms of this
Agreement.
SECTION 5. Counterparts. This Amendment No. 1 may be
executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be
deemed to be one and the same instrument, and all signatures need
not appear on any one counterpart.
-3-
IN WITNESS WHEREOF, each of the undersigned has signed this
Agreement:
NRE HOLDINGS, INC.
By
-------------------------------------
Name:
Title:
STOCKHOLDERS:
Xxxxx Restaurants Associates, Inc.
By
-------------------------------------
Name:
Title:
Jaro Enterprises, Inc.
By
-------------------------------------
Name:
Title:
Jaro Restaurants, Inc.
By
-------------------------------------
Name:
Title:
JB Restaurants, Inc.
By
-------------------------------------
Name:
Title:
-4-
Castleking, Inc.
By
-------------------------------------
Name:
Title:
Xxxxx-Xxxxxx Restaurants, Inc.
By
-------------------------------------
Name:
Title:
Osburger, Inc.
By
-------------------------------------
Name:
Title:
----------------------------------------
Xxxxxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
-5-
Exhibit 1
No. of Shares No. of Shares No. of Shares
of Class D of Class A2 of Class B
Name Common Stock Preferred Stock Preferred StocK
---- -------------------------------- -------------------------------- --------------------------------
Set 1 Set 2 Set 1 Set 2 Set 1 Set 2
Securities Securities Securities Securities Securities Securities
---------- ---------- ---------- ---------- ---------- ----------
Xxxxx Restaurants, Inc. - 8,131 - 87.00 - 29.00
Jaro Restaurants, Inc. - 17,128 - 187.50 - 62.50
Jaro Enterprises, Inc. - 44,366 - 90.00 - 30.00
JB Restaurants, Inc. - 123,763 - 550.5 - 183.50
Castleking, Inc. - 26,876 - 187.5 - 62.50
Xxxxx-Xxxxxx Restaurants - 33,363 - 97.5 - 32.50
Xxxxxxxx Xxxx 33,710 - - - - -
Xxxxxxx Xxxxxx 33,170 - - - - -
Xxxx Xxxxxx 33,170 - - - - -
Xxxx Xxxxxx 11,240 - - - - -
Xxx Xxxxxxxxx 5,620 - - - - -
Xxxxx Xxxxxxx 5,620 - - - - -
-------- ------- --- ---- --- ------
Total 123,610 253,627 0 1200 0 400.00
Subordinated
Name Notes
---- ------------------
Xxxxx Restaurants, Inc. -
Jaro Restaurants, Inc. $112,000
Jaro Enterprises, Inc. $1,224,000
JB Restaurants, Inc. $2,019,000
Castleking, Inc. $385,769
Xxxxx-Xxxxxx Restaurants $659,231
Xxxxxxxx Xxxx -
Xxxxxxx Xxxxxx -
Xxxx Xxxxxx -
Xxxx Xxxxxx -
Xxx Xxxxxxxxx -
Xxxxx Xxxxxxx -
----------
Total $4,400,000
