Exhibit 99.2
SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Agreement") is made and entered into as of
Agust 1, 2005, by and among Noble Roman's, Inc. ("NRI"), Oak Grove Corp.,
Pizzaco, Inc., LPS, Inc., G.N.R., Inc. and N.R. East, Inc., on behalf of
themselves and each of their officers, directors, employees and shareholders,
including but not limited to Xxxx X. Xxxxxx and Xxxxx Xxxxxx, and each of their
agents, affiliates, subsidiaries and successors-in-interest, to the extent
legally permissible (NRI and all such related entities and persons are referred
to collectively hereinafter as the "Noble Roman's Parties"), and SummitBridge
National Investments LLC ("SummitBridge"), Drawbridge Special Opportunities Fund
LP and X.X. Xxxxx Special Opportunities Fund, L.P., formerly known as
Highbridge/Xxxxx Special Opportunities Fund, L.P. (together, the "Funds"), on
behalf of themselves and each of their general partners, limited partners,
members, managers, managing members and the employees, agents, officers,
directors, shareholders, affiliates, subsidiaries and successors-in-interest of
each, to the extent legally permissible, including, but not limited to, Summit
Investment Management LLC (SummitBridge and the Funds and all such related
entities and persons are referred to collectively hereinafter as the
"SummitBridge Parties"), with reference to the following matters now agreed to
as among the Noble Roman's Parties and SummitBridge Parties (collectively, the
"Parties"):
WHEREAS, NRI entered into certain credit agreements and other agreements
with The Provident Bank ("Provident") over a period of years prior to October,
2003, which such agreements culminated in a "Tranche Y Term Loan Promissory
Note" made by NRI on or about April 30, 1999 in favor of Provident for a face
amount of $8,000,000.00 (the "Note") and Provident's ownership of approximately
3,214,748 shares of common stock in NRI acquired by Provident at various times
directly from NRI (the "Common Stock"), $4,929,275 stated amount of no-yield
preferred stock in NRI, convertible into 1,643,092 shares of common stock in
NRI, acquired by Provident on or about February 8, 2000 (the "Preferred Stock")
and a warrant to purchase 385,000 shares of common stock in NRI
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represented by a Warrant Certificate issued to Provident by NRI on or about
August 13, 1998 (the "Warrant") ( the Common Stock, Preferred Stock and Warrant
are referred collectively hereinafter as the "Equity Interest");
WHEREAS, Xxxx X. Xxxxxx, Oak Grove Corporation, Pizzaco, Inc., LPS, Inc.;
G.N.R., Inc. and N.R. East, Inc. (collectively, the "Guarantors") entered into
certain guarantees over a period of years prior to October, 2003 in favor of
Provident with respect to certain obligations of NRI to Provident subject to the
terms and conditions set forth in the respective instruments (the "Guarantees");
WHEREAS, on or about October 17, 2003 SummitBridge acquired the Note and
the Equity Interest from Provident;
WHEREAS, On or about Xxxxx 00, 0000, XXX filed a "Complaint for Declaratory
Judgment, Money Damages, and Jury Trial" in the Xxxxxx County Superior Court in
the State of Indiana against SummitBridge and the Funds, as Cause No.
49D11-0403-PL-00531 (the "Action"), seeking, inter alia, declaratory relief with
respect to the terms and enforceability of the Note and certain aspects of the
Equity Interest, as well as monetary damages;
WHEREAS, SummitBridge appeared in the Action and denied NRI's claims and
concurrently filed a Counterclaim against NRI to enforce the Note and certain
rights attendant to the Equity Interest as well as a Third Party Complaint
seeking to enforce the Note as against the Guarantors;
WHEREAS, NRI dismissed the Funds from the Action, without prejudice, before
an appearance on their behalf was required;
WHEREAS, NRI and SummitBridge subsequently each filed amended pleadings in
the Action asserting claims against one another arising out of certain
communications, events and relationships with third parties who held
subordinated debentures issued by NRI; and
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WHEREAS, the Noble Roman's Parties and the SummitBridge Parties have now
reached a global resolution of their disputes with one another, including the
claims made in the Action by NRI and SummitBridge and related issues arising out
of the Note and the Equity Interest;
NOW THEREFORE, the Parties wish to fully and finally settle their
respective rights and liabilities under the Note and the Equity Interest, to
resolve all claims which were made or could have been made in the Action, to
enter into new agreements as set forth herein governing the relationship between
the Noble Roman's Parties and the SummitBridge Parties, and to otherwise fully
and finally release as set forth herein any and all claims and rights that any
Party has, has had, or may allege or later discover that they have or had,
against the other (excepting those created or expressly excepted by this
Agreement or its attendant documentation), at any time through and including the
date of the entry of the Judgment in the Action described in Paragraph 3 below.
I. TERMS OF AGREEMENT
In consideration of the foregoing recitals, and the terms and provisions
contained herein, and for good and valuable consideration, the Parties agree as
follows:
1. Resolution of the Note and Equity Interest
1.1 GE Financing Commitment
NRI will use commercially reasonable efforts to obtain, by no later than
July 25, 2005, a commitment or letter of understanding for financing for NRI
with GE Franchise Finance Corporation, or another institutional source ("GEFF"),
on terms similar to the former financing commitment letter from GEFF dated
October 4, 2004 (the "GEFF Commitment"), a copy of which is attached hereto as
Exhibit A. This Agreement, and all of the terms, conditions, rights and
obligations of or relating to the Parties hereunder, is expressly contingent
upon NRI obtaining, and closing upon, such financing on terms no less favorable
to it, in its discretion, than the terms set forth in the GEFF Commitment (the
"GEFF Closing"). The Parties agree to use their commercially reasonable efforts
to cause the GEFF Closing to
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occur at the earliest practicable time but in any event no later than 11:59 p.m.
(Eastern Time) on August 25, 2005. This Agreement shall terminate and the
Parties shall have no further obligations hereunder if the GEFF Closing shall
not have occurred before August 26, 2005. NRI agrees that, pending the GEFF
Closing, NRI will use commercially reasonable efforts to keep SummitBridge
informed of the progress of the GEFF Commitment and GEFF Closing.
1.2 Payment to SummitBridge
By the close of business on the first business day following the GEFF
Closing, NRI shall cause GEFF to remit, or shall cause an independent escrow
holder of escrowed funds under the joint control of GEFF and NRI to remit to one
or more bank accounts designated by SummitBridge the aggregate sum of Eight
Million Three Hundred Thousand Dollars ($8,300.000.00), by wire transfer(s) (the
"Payment"). Wire transfer instructions are set forth in Exhibit B hereto.
1.3 Resolution of the Note and All Related Security Interest(s) and the
Equity Interest
Upon receipt and in consideration of the Payment described in Paragraph 1.2
above, SummitBridge shall execute and deliver to NRI the following
(collectively, the "SummitBridge Deliveries"):
(a) a full release and satisfaction of the Note in the form of the "Release
and Satisfaction of Promissory Note" attached hereto as Exhibit C. By this
Agreement, each of the SummitBridge Parties thereafter hereby relinquish all of
its collective right, title and interest in the Note, including all rights to
principal, interest, fees, costs and attorneys' fees, if any, that have accrued
on or in relation to the Note as of the date of surrender;
(b) any and all documents necessary to release any security interest(s)
held or purported to be held by SummitBridge or any SummitBridge Party with
respect to the Note, including,
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but not limited to, any such interest created or provided by that certain Fourth
Amendment to Credit Agreement dated as of April 30, 1999 by and between NRI and
Provident;
(c) a full release and satisfaction in favor of each of the Guarantors with
respect to the Note and the Guarantees in the form of the "Release of
Guarantors" attached hereto as Exhibit D. By this Agreement, each of the
SummitBridge Parties thereafter hereby relinquishes all of its collective right,
title and interest in the Guarantees;
(d) the original Warrant or an affidavit executed by an appropriate
representative of SummitBridge that the Warrant has been lost or destroyed. By
this Agreement, each of the SummitBridge Parties thereafter hereby relinquishes
all of its collective right, title and interest in the Warrant. SummitBridge
shall cooperate reasonably in the execution of any documentation required by NRI
to cancel the Warrant;
(e) all certificates representing the Preferred Stock, together with stock
powers duly endorsed in blank for transfer to NRI. By this Agreement, each of
the SummitBridge Parties thereafter hereby relinquishes all of its collective
right, title and interest in the Preferred Stock. SummitBridge shall cooperate
reasonably in the execution of any documentation required by NRI to cancel the
Preferred Stock; and
(f) certificates representing a total of Eight Hundred Fourteen Thousand,
Seven Hundred and Forty-Eight (814,748) shares of common stock in NRI currently
owned by SummitBridge (the "Surrendered Shares"), together with stock powers
duly endorsed in blank for transfer to NRI. By this Agreement, each of the
SummitBridge Parties thereafter hereby relinquishes all of its collective right,
title and interest in the Surrendered Shares. SummitBridge shall cooperate
reasonably in the execution of any documentation required by NRI to cancel the
Surrendered Shares. It is the further intent of the Parties that, following
relinquishment of the Surrendered Shares, SummitBridge shall retain record
ownership of a total of Two Million Four Hundred Thousand (2,400,000) shares of
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common stock in NRI (the "Retained Common Stock"). NRI shall use commercially
reasonable efforts to confirm SummitBridge's ownership of the Retained Common
Stock, including but not limited to issuance of new stock certificates
evidencing such shares. Such stock certificates may bear legends, in the form of
the exemplar legend attached hereto as Exhibit E, evidencing the restrictions
referred to in this Agreement.
2. Closing
The closing of the transactions contemplated by Paragraphs 1.2 and 1.3 (the
"Closing") shall occur no later than the close of business (Standard Time) on
the first business day immediately following the GEFF Closing and shall occur at
the offices of Bose XxXxxxxx & Xxxxx LLP, 2700 First Indiana Plaza, 000 Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx or at such other time and place as is
mutually agreed to by the SummitBridge and NRI.
3. Dismissal of the Action
In consideration of the Payment and the XxxxxxXxxxxx Xxxxxxxxxx, XXX,
XxxxxxXxxxxx and the Guarantors each agree to have their counsel of record in
the Action execute and submit, immediately after the GEFF Closing, for signature
and filing, to the Xxxxxx County Superior Court, the "[Proposed] Stipulated
Judgment and Dismissal With Prejudice" attached to this Agreement as Exhibit F
for entry by the Court. The purposes of the Stipulated Judgment are to: (a)
obtain a judicial declaration by the Court that SummitBridge is not an
"interested shareholder" of NRI within the meaning of the Indiana Business
Combination Law (I.C. Section 23-1-43 et seq.), arising out of or with respect
to: (i) this Agreement; and/or (ii) SummitBridge's direct, or indirect
beneficial, ownership of the portion of the Stock Interest consisting of the
2,400,000 shares of common stock (or any part thereof) in NRI that will continue
to be held by SummitBridge immediately after the GEFF Closing; (b) obtain a
judicial declaration by the Court that the SummitBridge is and will remain
subject to the provisions of Indiana Control Share Acquisition Law (I.C.Section
23-1-42 et seq.) with respect to its rights as a holder of all or any portion of
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the Retained Common Stock and has, no voting rights in respect of the Retained
Common Stock unless and until such rights are granted in the future pursuant to
a shareholder resolution adopted in accordance with the terms of the Control
Share Acquisition Law; (c) dismiss with prejudice all remaining claims raised in
the Action; and (d) provide that the Noble Roman's Parties, including the
Guarantors, and the SummitBridge Parties, including the Funds, shall each bear
their own litigation costs and attorneys' fees associated in any way with the
Action.
4. Releases
4.1 Release of SummitBridge Parties by Noble Roman's Parties
In consideration of the SummitBridge Deliveries, each of the Noble Roman's
Parties hereby releases and discharges the SummitBridge Parties from any and all
claims, demands, debts, obligations, liabilities, costs, expenses, rights of
action, causes of action, awards and judgments of any kind or character
whatsoever, whether known or unknown, suspected or unsuspected, whether
currently existing or arising in the future, arising out of or relating to any
claim or matter asserted, or which could have been asserted, in the Action (the
"Noble Roman's Released Claims"). The Noble Roman's Parties acknowledge and
agree that the Noble Roman's Released Claims may include claims of every nature
and kind whatsoever against the SummitBridge Parties, whether known or unknown,
suspected or unsuspected, and further acknowledges that such claims may be
presently unknown or unsuspected, and may be based upon hereafter discovered
facts different from, or in addition to, those which the Noble Roman's Parties
now know, or believe to be true. Nevertheless, the Noble Roman's Parties agree
that the foregoing release shall be and remain effective in all respects,
notwithstanding such different or additional facts, or the discovery thereof.
The sole exception to this general release by the Noble Roman's Parties shall be
any claim(s) arising out of: (a) this Agreement or the Noble Roman's Parties'
rights hereunder; and/or (b) any document required to be executed, or any act
required to be taken, by the SummitBridge Parties in order to carry out this
Agreement.
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4.2 Release of Noble Roman's Parties by SummitBridge Parties
In consideration of the Payment, each of the SummitBridge Parties hereby
releases and discharges the Noble Roman's Parties from any and all claims,
demands, debts, obligations, liabilities, costs, expenses, rights of action,
causes of action, awards and judgments of any kind or character whatsoever,
whether known or unknown, suspected or unsuspected, whether currently existing
or arising in the future, arising out of or relating to any claim or matter
asserted, or which could have been asserted, in the Action (the "SummitBridge
Released Claims"). The SummitBridge Parties acknowledge and agree that the
SummitBridge Released Claims may include claims of every nature and kind
whatsoever against the Noble Roman's Parties, whether known or unknown,
suspected or unsuspected, and further acknowledges that such claims may be
presently unknown or unsuspected, and may be based upon hereafter discovered
facts different from, or in addition to, those which the SummitBridge Parties
now know, or believe to be true. Nevertheless, the SummitBridge Parties agree
that the foregoing release shall be and remain effective in all respects,
notwithstanding such different or additional facts, or the discovery thereof.
The sole exception to this general release by the SummitBridge Parties shall be
any claim(s) arising out of: (a) this Agreement or the SummitBridge Parties'
rights hereunder; (b) any document required to be executed, or any act required
to be taken, by the Noble Roman's Parties in order to carry out this Agreement;
and/or (c) the SummitBridge Parties' rights with respect to the Retained Common
Stock, subject to the applicability of the Indiana Control Share Acquisition Law
as described in Paragraph 3(b).
5. Indemnification
5.1 Indemnification of SummitBridge Parties by NRI
From and after Closing, NRI shall indemnify and hold harmless the
SummitBridge Parties from any cost, liability, damage or loss, including all
reasonable costs and attorney's fees incurred in connection therewith, incurred
directly or indirectly by reason of a claim, demand, debt, obligation,
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liability, cost, expense, right of action, cause of action, award or judgment
against the SummitBridge Parties arising out of or relating to any future claim
raised by the Noble Roman's Parties that asserts or purports to assert, in whole
or in part, any of the Noble Roman's Released Claims.
5.2 Indemnification of Noble Roman's Parties by SummitBridge
From and after the Closing, SummitBridge shall indemnify and hold harmless
the Noble Roman's Parties from any cost, liability, damage or loss, including
all reasonable costs and attorney's fees incurred in connection therewith,
incurred directly or indirectly by reason of a claim, demand, debt, obligation,
liability, cost, expense, right of action, cause of action, award or judgment
against the Noble Roman's Parties arising out of or relating to any future claim
raised by the SummitBridge Parties that asserts or purports to assert, in whole
or in part, any of the SummitBridge Released Claims.
6. Representations and Warranties Regarding the Action
6.1 No Admission of Liability
The provisions of this Agreement relating to the Action pertain to disputed
claims and do not constitute in any way an admission by any of the Parties of
liability or of the validity of any of the claims or matters alleged in the
Action. Execution of this Agreement does not constitute evidence of, and shall
not be construed to be, an admission of liability and/or wrongdoing by any of
the Parties.
6.2 No Other Actions Filed
Each of the Parties represents that, other than the Action, no litigation
against any other Party, related in any manner to the Noble Roman's Released
Claims or the SummitBridge Released Claims, has been filed, and that none will
be filed by or on behalf of any of the Parties at any time hereafter.
6.3 Warranty of No Assignment
The Parties each represent and warrant that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any person, firm
or corporation whatsoever any claim, debt, liability, demand, obligation, cost,
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expense, action or causes of action covered by this Agreement, and each of the
Parties acknowledges and agrees that this warranty and representation is an
essential and material term of this Agreement without which none of the
consideration received in connection herewith would have been made or delivered.
The foregoing warranty and representation shall survive the delivery of this
Agreement, and each of the Parties shall indemnify, defend and hold the others
harmless from any claims, demands or actions which have been assigned or
transferred, or purported to have been assigned or transferred, in violation of
the foregoing representation and warranty.
6.4 Factual Differences
Each of the Parties understands and accepts the risk that the facts with
respect to which this Agreement is entered into may be different from the facts
now known or believed by each Party to be true. The Parties agree that this
Agreement shall remain in all respects effective and shall not be subject to
termination or rescission by virtue of any such differences in fact.
7. [Reserved]
8. Initial Offering and Sale Conditions for the Retained Common Stock
8.1 Initial Right to Locate Qualified Buyer(s)
From and after the Closing, NRI and Xxxx X. Xxxxxx ("Xxxxxx") will use
commercially reasonable efforts to assist SummitBridge in finding one or more
buyers to purchase some or all of the Retained Common Stock, under the following
conditions:
(a) If the sale is a transaction exempt under the so-called "4-1/2"
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), NRI will have a reasonable belief that the
buyer(s) is an accredited investor within the meaning of Regulation D under the
Securities Act, who is willing, and financially able, as represented in a
written commitment letter executed by the prospective buyer(s), containing
customary representations, to purchase such common stock in NRI pursuant to a
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private sale not subject to registration with the Securities and Exchange
Commission (the "SEC") under the Securities Act;
(b) SummitBridge will sell all shares of the Retained Common Stock to any
such buyer(s) identified by NRI and/or Xxxxxx for an average price that equals
or exceeds the greater of: (i) $1.10 per share; or (ii) ninety percent (90%) of
the closing transaction price for NRI shares published for the trading day prior
to the date of purchase on which trades are reported; provided, however, that at
no time shall this Agreement be construed to require SummitBridge to consent to
the sale of any of the Retained Common Stock by or with the assistance of NRI
and/or Xxxxxx if the proposed per share price of such a sale would, if executed,
cause the average price of the aggregate amount of all shares of Retained Common
Stock sold, as measured on the date immediately following any such proposed
sale, to be less than the greater of $1.10 per share or ninety percent (90%) of
the transaction price for NRI shares published for the trading day prior to the
date of each of the prior sales of such shares; and
(c) NRI and Xxxxxx are entitled and agree to, continue their efforts to
locate such buyer(s) for a minimum period of one hundred eighty (180) days from
the Closing (the "Initial Sale Period"). If at the end of the Initial Sale
Period, SummitBridge holds more than a total of One Million Two Hundred Thousand
(1,200,000) shares of the Retained Common Stock, then NRI's and Xxxxxx'x rights
and obligations under this Paragraph 8.1 shall cease. If, however, at the end of
the Initial Sale Period, SummitBridge holds less than a total of One Million Two
Hundred Thousand (1,200,000) shares of the Retained Common Stock, then NRI and
Xxxxxx are entitled and agree to, continue their use their commercially
reasonable efforts to locate one or more buyer(s) of some or all of the
remaining Retained Common Stock, under the same conditions as set forth herein,
for one additional ninety (90) day period (the "Added Sale Period"). In no event
shall NRI's or Xxxxxx'x rights and obligations under this Paragraph extend
beyond two hundred seventy (270) days from the date of Closing.
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(d) NRI agrees to indemnify the SummitBridge Parties against all losses,
claims, damages, liabilities and expenses (collectively "claims") arising out of
or relating to the offer or sale of any Retained Shares by or with the
assistance of NRI and/or Xxxxxx pursuant to this Section 8.1, including without
limitation, claims based upon any untrue or alleged untrue statement of material
fact made by NRI and/or Xxxxxx in connection with such offer or sale or any
omission or alleged omission of a material fact required to be stated or
necessary to make the statements made not misleading, and shall reimburse the
SummitBridge Parties for any legal or other expenses reasonably incurred by such
person in connection with the investigation or defense of such claims, except
insofar as the same are caused by or contained in any information furnished in
writing to NRI and/or Xxxxxx by the SummitBridge Parties expressly for use in
connection with such offer or sale. Notwithstanding the foregoing to the
contrary, NRI shall have no obligation under this Paragraph 8.1(d) in respect of
any claim arising out of any untrue statement or omission of material fact in
any communication to any offeree or buyer that NRI establishes was first made by
any of the SummitBridge Parties without authorization by NRI, Xxxxxx and/or
their agents.
8.2 SummitBridge Parties Stand Still Period
8.2.1 Duration
During the period(s) in which NRI and Xxxxxx are performing their
obligations as required under the provisions of Paragraph 8.1 above within the
Initial Sale Period or, if triggered, the Added Sale Period, SummitBridge agrees
that it will not sell, offer to sell or place an order to sell any NRI common
stock in open market transactions without NRI's prior written consent (the
"Stand Still Period"). The Stand Still Period shall terminate on the earlier of:
(a) The date on which NRI's and Xxxxxx'x obligations under Paragraph 8.1
above expire;
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(b) The expiration of the Initial Sale Period if SummitBridge then holds a
total of 1,200,000 or more shares of the Retained Common Stock; or
(c) The expiration of the Added Sale Period.
8.2.2 Premium Sales and Referrals during Stand Still Period Nothing in this
Agreement shall preclude SummitBridge Investments from:
(a) Selling all or any portion of the Retained Common Shares during the
Stand Still Period to any buyer(s) who offers to purchase such shares at a price
in excess of that required by Paragraph 8.1(b) above; or
(b) Referring a prospective purchaser of some or all of the Retained Common
Stock to NRI or Xxxxxx during the Stand Still Period.
9. Restoration of Voting Rights in Retained Common Stock after Stand Still
Period
If, at the expiration of the Stand Still Period, SummitBridge continues to
own, directly or beneficially, any portion of the Retained Common Stock, NRI,
Xxxxxx and Xxxxx Xxxxxx agree to use their collective commercially reasonable
efforts to cause the then-holders of NRI's voting common stock to vote, in
accordance with the provisions of the Indiana Control Share Acquisition Law, to
restore to all shares of common stock in NRI still owned by SummitBridge full
voting rights permitted generally to the holders of NRI's common stock under
Indiana law and NRI's Articles of Incorporation and Bylaws. Xxxxxx and Xxxxx
Xxxxxx agree to vote all shares owned by them, directly or beneficially, or the
voting rights of which they control, by agreement or proxy, in favor of such
restoration of common stock voting rights to SummitBridge.
10. Right to Appoint Board Observer After Initial Sale Period
If, at the end of the Initial Sale Period described in Paragraph 8.1 above,
SummitBridge holds at least 1,200,000 shares of the Retained Common Stock, NRI
shall immediately take all steps necessary to provide for the appointment of,
and shall immediately grant and permit SummitBridge the sole right to appoint
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either: (a) any one of Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxx Pack or
Xxxxxx Xxxx in SummitBridge's sole discretion; or, alternatively, (b) any other
person, whose appointment is subject to the commercially reasonable consent of
NRI, to hold the seat of a single observer to the Board of Directors of NRI (the
"Observer Seat"). Subject to the execution of a confidentiality agreement in the
form of the agreement attached hereto as Exhibit G and to NRI's right to
withhold communications that create an unreasonable risk, in the opinion of
NRI's outside legal counsel, of waiving the attorney-client privilege, the
holder of the Observer Seat shall be entitled to all notices of meetings of the
NRI Board of Directors, shall receive and have access to the same records and
information provided to elected members of the NRI Board of Directors and shall
be entitled to actively participate in (but not vote at) any meetings or actions
of the NRI Board of Directors. The Observer Seat, and SummitBridge's sole right
to appoint the holder of the Observer Seat, shall remain effective for so long a
period in which SummitBridge owns, directly or beneficially, seven hundred fifty
thousand (750,000) or more shares of the Retained Common Stock.
11. Stock Registration Rights of SummitBridge
Commencing on the expiration of the Stand Still Period, and ending at 11:59
p.m. (Eastern Standard Time) on October 31, 2006 (the "Registration Period"),
SummitBridge shall be entitled to one demand registration right, as provided in
the form of "Registration Rights Agreement" attached hereto as Exhibit H, to
cause NRI to register under the Securities Act, the resale of all shares of
Retained Common Stock held as of the commencement of the Registration Period in
an underwritten public offering and/or in market transactions, at the sole
election of SummitBridge. The Registration Rights Agreement may only be invoked
by SummitBridge only in the event that the shares of Retained Common Stock then
directly owned by SummitBridge represent five percent (5%) or more of the then
outstanding shares of common stock in NRI.
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12. Forbearance by SummitBridge Parties from Unapproved Stock Transactions
or Contests
SummitBridge and each of the Funds agree that, for a period of two (2)
years from the Closing they shall not engage in, solicit or participate in any
proxy contest or tender offer involving NRI's common stock, except as expressly
provided for in this Agreement or as specifically approved by NRI's Board of
Directors.
13. General Provisions and Covenants
13.1 Binding on Successors
This Agreement shall inure to the benefit of and shall bind the Parties
hereto and their respective representatives, heirs, executors, administrators,
successors, families, employees, officers, directors, shareholders, agents and
assigns, to the extent legally permissible.
13.2 Further Documentation
Each of the Parties hereto shall do all acts and execute all documents
necessary or reasonably convenient to effectuate the terms and provisions of
this Agreement.
13.3 Final Agreement
This Agreement supersedes all prior negotiations and understandings of any
kind with respect to the subject matter hereof, and contains all of the terms
and provisions of the Agreement among the Parties hereto with respect to the
subject matter hereof. There are no oral representations, understandings,
statements or stipulations of any kind or character made by any of the Parties
bearing upon the effect of this Agreement to induce execution of this Agreement,
or otherwise, which have not been incorporated herein.
13.4 Governing Law
This Agreement is made under and shall be governed by and construed in
accordance with the laws of the State of Indiana.
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13.5 Severability Provision
If any provision of this Agreement is unenforceable, for any reason, the
remaining provisions shall nevertheless be of full force and effect.
13.6 Attorneys' Fees
The Parties hereto agree to bear their own respective attorneys' fees and
costs incurred prior to the date this Agreement is fully executed. In the event
of any controversy, claim or dispute following the date this Agreement is
finally executed, in connection with or relating to this Agreement, or the
subject matter hereof, the prevailing Party shall be entitled to recover all
costs and expenses (including, but not limited to, reasonable attorneys' fees)
incurred by the prevailing Party in connection therewith.
13.7 Modification
This Agreement may be modified only by a subsequent writing, signed by both
NRI and SummitBridge or, with respect to any other Party, by the Party to be
charged thereunder.
13.8 Headings
The paragraph headings of this Agreement are provided for the ease of
reference only and shall have no effect on its interpretation.
13.9 Agreement Mutually Negotiated
This Agreement has been negotiated between the Parties and has been
thoroughly reviewed by each party. Each party has had an opportunity to make
such changes as that party wished to make and each has had the opportunity to
have their counsel review and comment upon the Agreement and each provision
thereof. This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against any of the Parties hereto.
Accordingly, the parties agree that for purposes of interpreting this Agreement,
neither Party shall be deemed to have drafted this Agreement and each Party
waives any rule of contract construction which provides that ambiguities in the
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contract shall be construed against the Party who drafted the Agreement or
otherwise caused the ambiguity to exist.
13.10 Warranty of Authority
Each corporation executing this Agreement represents that this Agreement
has been executed and delivered by a duly appointed executive officer of the
corporation pursuant to a resolution adopted by the Board of Directors of the
corporation. Each partnership, limited partnership or limited liability company
executing this Agreement represents that this Agreement has been executed and
delivered by a duly appointed managing member, managing agent or partner, as the
case may be.
13.11 Representation by Counsel
The Parties hereto affirmatively represent that they have been represented,
or have had the opportunity to be represented, throughout the negotiation of
this Agreement by attorneys of their own choosing. The Parties each further
represent that such attorneys have adequately explained to them the terms and
conditions of this Agreement, and the legal ramifications and consequences
thereof. To the extent any Party(ies) has/have not consulted with an attorney or
consultant of their choice, they have done so voluntarily, of their own free
will and accord, and not as a result of any undue coercion or persuasion from
any other Party.
13.12 Knowing and Voluntary Agreement
The Parties each represent that they (or their undersigned representative)
have carefully read this Agreement and that they fully understand the contents
and legal effect thereof. The Parties each further affirmatively represent they
have discussed, or have had an opportunity to discuss, with attorneys or
advisors of their choice, each of the terms and conditions of this Agreement,
and that they understand and agree to each such term and condition.
Page 17 of 22
13.13 No Reliance on Any Other Party
The Parties each expressly represent that they have not relied upon any
statements or representations made by any other Party to this Agreement, or by
the representative, agent, or attorneys of any Party to this Agreement, other
than with respect to such statements and representations which are expressly set
forth in this Agreement.
13.14 Notices
Any notices required or made pursuant to this Agreement or its attendant
requirements shall be made as follows:
(a) If to Noble Roman's: Xxxx X. Xxxxxx
Chairman and CEO
Noble Roman's, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
With copies to:
Xxxxxx X. Xxxx, Esq.
Xxxxxxxx Xxxxxx LLP
One XX Xxxx Xxxxx
Xx. Xxxxx, XX 00000-0000
and to:
Xxxxxxx X. Xxxxxxx, Esq.
Bose XxXxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxxx Xxxxx
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(b) If to the SummitBridge Parties: Senior Asset Manager
Summit National Investments LLC
Xxxxx Fargo Building, Suite 2150
0000 Xxxxxxx Xxxxxx
Xxxxxx XX 00000
Page 18 of 22
With copies to:
Xxxx X. Xxxxxx, Esq.
Xxxx Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
and to:
Xxxxxxxx X. Xxxxx
Xxxx Xxxxx Xxxxxx & Xxxxxxx, P.C.
0000 Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, XX 00000
13.15 Counterparts
This Agreement may be executed in separate counterparts and shall become
effective only after all such separate counterparts have been executed and
exchanged between the Parties. Facsimile signatures shall be sufficient provided
they are subsequently supplemented by the originals thereof.
DATED: August 1, 2005 Noble Roman's, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
Chairman and Chief Executive Officer
DATED: August 1, 2005 Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Page 19 of 22
DATED: August 1, 2005 A. Xxxxx Xxxxxx
/s/ A. Xxxxx Xxxxxx
-----------------------------------------
DATED: August 1, 0000 Xxx Xxxxx Corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
DATED: August 1, 2005 Pizzaco, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
DATED: August 1, 2005 LPS, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
DATED: August 1, 2005 G.N.R., Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
DATED: August 1, 2005 N.R. East, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
Page 20 of 22
APPROVED AS TO FORM:
DATED: August 1, 2005 Xxxxxxxx Xxxxxx LLP
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx, Esq
DATED: July 26, 2005 Bose XxXxxxxx & Xxxxx LLP
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Esq.
Attorneys for Noble Roman's, Inc.,
Xxxx X. Xxxxxx, Xxxxx Xxxxxx, Oak Grove
Corporation, Pizzaco, Inc., LPS, Inc.,
G.N.R., Inc. and N.R. East, Inc.
DATED: ___________, 2005 SummitBridge National Investments LLC
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxxxxxx Xxxxxxxx
Its: Authorized Signatory
DATED: ___________, 2005 Drawbridge Special Opportunities Fund LP
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxxxxxx Xxxxxxxx
Its: Chief Credit Officer
Page 21 of 22
DATED: ___________, 2005 X.X. Xxxxx Special Opportunities Fund, L.P.
By: X.X. Xxxxx & Co.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
Its: General Counsel
APPROVED AS TO FORM:
DATED: July 27, 2005 Xxxx Xxxxx LLP
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, Esq
DATED: July 26, 2005 Xxxx Xxxxx Xxxxxx & Xxxxxxx, P.C
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, Esq.
Attorneys for SummitBridge National
Investments LLC, Drawbridge Special
Opportunities Fund LP and X.X. Xxxxx
Special Opportunities Fund, L.P.
Page 22 of 22
