FEE AGREEMENT
Exhibit
10.36
This
Fee
Agreement (the "Agreement") is made and entered into as of December 19, 2007
among El Pollo Loco, Inc. (the "Company"), a Delaware corporation, Chicken
Acquisition Corp. ("CAC"), a Delaware corporation, and Trimaran Fund II, LLC
("Provider"), a Delaware limited liability company.
WHEREAS,
the Company is required to post a bond (the "Bond") securing its obligation
to
pay a judgment (the "Judgment") in connection with the El Pollo Loco S.A. de
C.V. v. El Pollo Loco, Inc. litigation (the "Litigation");
WHEREAS,
Provider agrees to assist the Company in posting the Bond by entering into
the
following agreements: (1) a Reimbursement Agreement, dated the date hereof
(the
"Reimbursement Agreement"), among Provider, CIBC as Administrative Agent, in
respect of a letter of credit to be posted to secure the Bond, in consideration
for the Company and CAC entering into this Agreement and (2) a payment and
subscription agreement, dated the date hereof (the "Payment and Subscription
Agreement"), among Provider, the Company and CAC, pursuant to which the Company
or CAC, as the case may be, shall reimburse Provider for any amounts paid by
Provider, directly or indirectly, relating to the Bond or the
Judgment.
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations
and warranties herein contained, the Company, CAC and Provider hereby agree
as
follows:
1. Fees.
(a) Up-Front
Fee.
On the
date hereof, the Company shall pay to Provider a fee equal to 3% (the "Up-Front
Fee") of the stated amount of the Letter of Credit (as defined in the
Reimbursement Agreement), which fee shall be earned, due and payable in full
immediately upon Provider's entering into the Reimbursement Agreement in any
one
or more of the forms of consideration provided for in Section 1(c) below, at
Provider's option.
(b) Periodic
Fee and Fee Upon Provision of Cash Collateral.
In the
event that, after the Company pays the Up-Front Fee to Provider, Provider is
required to pay any amount(s) (each such amount, a "Periodic Fee") in connection
with the Letter of Credit other than the Cash Collateral Fee (as defined below),
the Company shall pay, in any one or more of the forms of consideration provided
for in Section 1(c) below, at Provider’s option, a fee equal to such amount(s)
to Provider on or before each date such amount(s) is due and payable by
Provider. In the event that the Provider provides cash collateral pursuant
to
Section 2.02 of the Reimbursement Agreement, the Company shall owe to Provider
a
fee at a per annum rate equal to 13.25% (the "Cash Collateral Fee" and, together
with the Up-Front Fee and any Periodic Fees, the "Fees") of the amount of cash
collateral so provided. The Cash Collateral Fee shall be due and payable
quarterly in arrears, in each case, in any one or more of the forms of
consideration provided for in Section 1(c) below, at Provider's
option.
(c) Fee
Payment or Subscription.
At each
Closing (as defined below) upon the terms and subject to the conditions set
forth in this Agreement, as payment of any Fees to be paid at such Closing,
at
Provider's option:
(i) the
Company or CAC shall pay Provider or Provider's designee an amount in U.S.
dollars in immediately available funds equal to up to the Fees to be paid at
such Closing;
(ii) the
Company or CAC, at Provider's option, shall issue to Provider or Provider's
designee a promissory note with a principal amount equal to up to the Fees
to be
paid at such Closing containing terms substantially similar to those set forth
in Schedule A hereto, subject to applicable preemptive rights as described
below;
(iii) Provider
or Provider's designee shall automatically, and with no further action by any
party hereto, have a right of payment due immediately from the Company or CAC,
at Provider's option, for payment in full of an amount equal to up to the Fees
to be paid at such Closing, accruing interest at a rate of 13.25% per annum,
compounded annually, which rate shall increase by 0.50% per calendar quarter
(with the first such increase occurring at the beginning of the second calendar
quarter after the Closing) up to a maximum rate of 17.5% per annum;
(iv) CAC
shall
issue to Provider or Provider's designee shares of Convertible Preferred Stock,
par value $0.01 per share (the "Convertible Preferred Stock"), in CAC at a
price
per share and on terms substantially similar to those set forth in Schedule
B
hereto in an aggregate issue price equal to up to Fees to be paid at such
Closing, subject to applicable preemptive rights as described
below;
(v) CAC
shall
issue to Provider or Provider's designee shares of common stock, par value
$0.01
per share (the "Common Stock"), of CAC at a price per share as set forth in
Schedule C hereto in an aggregate amount equal to up to Fees to be paid at
such
Closing, subject to applicable preemptive rights as described below;
or
(vi) Provider
may choose any combination of (i) through (v) above for an aggregate amount
equal to up to Fees to be paid at such Closing;
provided that,
Provider may choose options (i) through (vi) only to the extent that such
options do not result in a default under the terms of the Company's or CAC's
outstanding indebtedness at the time of the Closing; provided further
that any
Issuance (as defined below), including any issuance pursuant to Section 1(d)
below, to a party to the LLC Operating Agreement (as defined below) shall be
held, at Provider's option, either: (i) directly by the purchasing stockholder
or (ii) through Trimaran Pollo Partners, LLC. For purposes of this Agreement,
the "Payment" shall mean any of (i) through (vi) above.
2
(d) Preemptive
Rights.
Any
issuance of shares or debt securities under this Agreement or the Fee Agreement
(each, an "Issuance") pursuant to Sections 1(c)(ii), (iv), (v) or (vi) above
shall be subject to applicable preemptive rights pursuant to the Stockholders
Agreement (the "Stockholders Agreement"), dated November 18, 2005, by and among
CAC and the stockholders listed therein, and the Second Amended and Restated
Limited Liability Company Operating Agreement (the "LLC Operating Agreement"),
dated March 8, 2006, of Trimaran Pollo Partners, LLC. To the extent any parties
to such agreements elect to exercise applicable preemptive rights with respect
to any Issuance, at Provider's option:
(i) upon
such
Issuance, Provider shall sell to each party who has duly exercised applicable
preemptive rights the number of shares or debt securities (or pro rata portion
of such debt security, as the case may be) as to which such preemptive rights
have been exercised at a price per share or per debt security equal to the
price
per share or per debt security in the Issuance; or
(ii) CAC
shall
(A) repurchase from Provider the number of shares or debt securities as to
which
such preemptive rights have been duly exercised at a price per share or per
debt
security equal to the price per share or per debt security in the Issuance
and
(B) sell such shares or debt securities to each party who has duly exercised
applicable preemptive rights.
(e) Closings.
(i) The
closing of the Up-Front Fee (the "Up-Front Fee Closing") shall take place on
the
date on which all of the conditions set forth in Section 3(a)(i) of this
Agreement have been satisfied or waived (other than those conditions which
by
their terms are intended to be satisfied at the Closing) at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or on such other date as mutually agreed by the parties to this
Agreement.
(ii) The
closing of each Periodic Fee or Cash Collateral Fee (together with the Up-Front
Fee Closing, each a "Closing") shall take place no later than five days after
all of the conditions set forth in Section 3(a)(ii) of this Agreement have
been
satisfied or waived (other than those conditions which by their terms are
intended to be satisfied at such Closing) at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
on such other date as mutually agreed by the parties to this
Agreement.
(f) Blue
Sky Compliance.
The
Company, Provider and CAC shall comply with all state securities or "blue sky"
laws which are applicable to the Payment hereunder, and Provider agrees to
provide the Company and CAC with such information, and cooperate with such
filings, as may be required in connection with such compliance.
3
(g) Stockholders
Agreement.
If
shares of capital stock are to be issued pursuant to this Agreement or the
Fee
Agreement, (i) the Provider shall, if necessary, execute a Joinder (the
"Joinder") to the Stockholders Agreement pursuant to which Provider becomes
a
party to the Stockholders Agreement as an Additional Stockholder (as defined
in
the Stockholders Agreement) and bound by the provisions thereto and (ii) CAC
shall cause such amendments to the Stockholders Agreement as are required
pursuant to the terms thereto to reflect Provider or Provider’s designee, as
applicable, as an Additional Stockholder.
(h) Compliance
with Indentures.
If
requested by Trimaran, the Company or CAC, as applicable, shall engage (at
the
Company or CAC's expense, as applicable) an investment banking firm of national
standing to give an opinion as to the fairness to the Company or CAC, as the
case may be, of the transactions contemplated by this Agreement. Each of the
Company and CAC shall use best efforts to comply with Section 4.11 of the
Indenture, dated as of November 18, 2005, among El Pollo Loco, Inc. (as
successor to EPL Finance Corp. by merger), EPL Intermediate, Inc. and The Bank
of New York Trust Company, N.A., as trustee (the "EPL Indenture") and Section
4.11 of the Indenture, dated as of November 18, 2005, between EPL Intermediate,
Inc. (as successor to EPL Intermediate Finance Corp. by merger) and The Bank
of
New York Trust Company, N.A., as trustee (the "Intermediate Indenture" and,
together with the EPL Indenture, the Indentures), to the extent applicable,
including by delivering an officer's certificate or fairness opinion if
required; provided
that, if
either the Company or CAC are unable to so comply with the Indentures, this
Agreement shall be modified by the parties but only to the extent required
to so
comply with the Indentures.
2. Representations
and Warranties and Other Agreements.
(a) Representations
and Warranties and Agreements of Provider.
Provider represents and warrants to, and agrees with, the Company and CAC that,
as of the date hereof and as of each Closing:
(i) Any
shares of capital stock (the "Shares"), notes or obligations acquired by
Provider pursuant to this Agreement (collectively with the Shares, "Securities")
are for Provider's own account for investment purposes or to satisfy preemptive
rights pursuant to the Stockholders Agreement or the LLC Operating Agreement
and
not with a view to distribution of the Securities or for sale in violation
of the Securities Act of 1933, as amended, and the rules and regulations in
effect from time to time thereunder (the "Securities Act") or other applicable
law; provided that the disposition of Provider's property shall at all times
be
within Provider's control.
(ii) Provider
has been advised by the Company and CAC that: (A) neither the offer nor
sale of any Securities has been registered under the Securities Act or any
state
or foreign securities or "blue sky" laws and neither the Company nor CAC is
required to register the Securities; (B) the Securities, when issued, are
characterized as "restricted securities" under the Securities Act as they are
being acquired from CAC in a transaction not involving a public offering and
that Provider may not resell the Securities and must continue to bear the
economic risk of the investment in its Securities unless the offer and sale
of
the Securities is subsequently registered under the Securities Act and all
applicable state or foreign securities or "blue sky" laws or an exemption from
such registration is available; (C) it is not anticipated that there will
be any public market for the Securities in the foreseeable future; (D) when
and if the Securities may be disposed of without registration under the
Securities Act in reliance on Rule 144, such disposition can be made only in
limited amounts in accordance with the terms and conditions of such Rule;
(E) if the Rule 144 exemption is not available, public offer or sale of any
Securities without registration will require the availability of another
exemption under the Securities Act; (F) a restrictive legend in the form
satisfactory to CAC shall be placed on the certificates representing the
Securities; and (G) a notation shall be made in the appropriate records of
CAC indicating that the Securities are subject to restrictions on transfer
and,
if CAC should engage the services of a stock transfer agent, appropriate stop
transfer restrictions will be issued to such stock transfer agent.
4
(iii) Provider
is an "accredited investor" as defined in the Securities Act and Provider has
such knowledge, skill and experience in business, financial and investment
matters so that Provider is capable of evaluating the merits, risks and
consequences of an investment in the Securities to be purchased by it and is
able to bear the economic risk of the loss of its investment.
(iv) Provider
is duly organized, validly existing and in good standing under the laws of
its
jurisdiction of organization.
(v) Provider
has all the requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
(vi) This
Agreement has been duly and validly authorized, executed and delivered by
Provider.
(vii) This
Agreement constitutes the valid, binding and enforceable agreement of Provider
except as enforceability may be limited by (A) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws relating to or affecting creditor’s rights generally and (B) general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
(viii) The
execution, delivery and performance by Provider of this Agreement does not
and
will not (A) violate any provision of Provider's organizational documents,
(B) constitute or result in a breach of or a default (or an event which,
with notice or lapse of time, or both, has the potential of constituting a
default) under any agreement to which Provider is a party, (C) violate any
law binding upon Provider or to which any of its assets are subject or
(D) require the consent of any third party or governmental body or agency,
except with respect to clauses (B), (C) and (D) above, as would not reasonably
be expected to have a material adverse effect on Provider.
5
(b) Representations
and Warranties of the Company and CAC.
Each of
the Company and CAC (each, as "Representing Party") represents and warrants,
as
to itself, to Provider that, as of the date hereof and as of each
Closing:
(i) The
Representing Party is a corporation duly organized, validly existing and in
good
standing
under the laws of the State of Delaware.
(ii) The
Representing Party has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder.
(iii) This
Agreement has been duly and validly authorized, executed and delivered by the
Representing Party.
(iv) This
Agreement constitutes the valid, binding and enforceable agreement of the
Representing Party, except as such enforceability may be limited by
(A) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting creditors’
rights generally and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(v) The
execution, delivery and performance by the Representing Party of this Agreement
does not and will not (A) violate any provision of the Representing Party’s
Certificate of Incorporation or By-laws, (B) constitute or result in a
breach of or a default (or an event which, with notice or lapse of time, or
both, has the potential of constituting a default) under any agreement to which
the Representing Party is a party, (C) violate any law binding upon the
Representing Party or to which any of its assets are subject or (D) require
the consent of any third party or governmental body or agency.
(vi) The
Shares, upon issuance by CAC pursuant to this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable.
(vii) Assuming
the accuracy of the representations set forth in Section 2 hereof, the offer
and
sale of the Securities is not required to be registered under the Securities
Act.
3. Conditions
to Performance.
(a) Conditions
to the Company and CAC's Obligations at each Closing.
(i) The
Company and CAC’s obligation to consummate the Up-Front Fee Closing is subject
to the satisfaction or waiver by the Company and CAC of the following
conditions: (A) Provider shall have executed the Reimbursement Agreement, (B)
Provider shall have provided notice to the Company and CAC of the form of
Payment pursuant to Section 1(c) of this Agreement, and (C) if any Shares are
to
be issued at the Closing, Provider or Provider's designee, as applicable, shall
have executed the Joinder, if necessary.
6
(ii) The
Company and CAC's obligation to consummate each Closing subsequent to the
Up-Front Fee Closing is subject
to
satisfaction or waiver by the Company and CAC of the following conditions:
(A)
the Cash Collateral Fee shall be due and payable, (B) Provider shall have
provided notice to the Company and CAC of the form of Payment pursuant to
Section 1(c) of this Agreement, and (C) if any Shares are to be issued at the
Closing, Provider or Provider's designee, as applicable, shall have executed
the
Joinder, if necessary.
(b) Conditions
to Provider's Obligations.
The
obligation of Provider to consummate each Closing is subject to satisfaction
or
waiver by Provider of the following conditions: (i) the performance by the
Company and CAC at or prior to the Closing of all of the agreements of the
Company contemplated to be performed hereunder at or prior to the Closing,
(ii)
the accuracy of the representations and warranties of the Company and CAC
contained in Section 2 hereof, (iii) no statute, rule, regulation or order
of
any court or administrative agency being in effect which prohibits the Company,
CAC or Provider from consummating the transactions contemplated hereby, and
(iv)
if any Shares are to be issued at the Closing, CAC shall have executed the
Joinder and any applicable amendments to the Stockholders
Agreement.
4. Survival.
The
representations and warranties of the parties set forth in this Agreement shall
survive each Closing.
5. Binding
Effect.
The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and the heirs, successors and assigns of the
parties hereto.
6. Fees
and Expenses.
Each of
the Company and CAC shall bear its own costs and expenses, and the Company
shall
bear the costs and expenses of Provider, in connection with the negotiation,
execution and delivery of this Agreement and the other documents related
hereto.
7. Assignment.
None of
the parties to this Agreement shall assign any rights under this Agreement
without the prior written consent of the other parties hereto; provided that
Provider
may assign its rights and obligations under this Agreement without the consent
of any party hereto, provided that such assignment shall not relieve Provider
of
its obligations under this Agreement. Except as expressly set forth in this
Agreement, this Agreement shall inure to the benefit of, and be binding upon,
the permitted successors and assigns of each of the parties to this Agreement.
Except as provided in this Section 7, any attempted assignment under this
Agreement by any party to this Agreement which has not been consented to by
the
other parties shall be void.
7
8. Applicable
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
9. Invalidity
of Provisions.
The
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of the remainder
of
this Agreement in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.
10. Headings;
Execution in Counterparts.
The
headings and captions contained herein are for convenience of reference only
and
shall not control or affect the meaning or construction of any provision hereof.
This Agreement may be executed in counterparts, each of which shall be deemed
to
be an original and all of which together shall constitute but one and the same
instrument.
11. Notices.
All
notices and other communications provided for herein shall be dated
and in
writing and shall
be
deemed to have been duly given when delivered,
if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid and when received if delivered otherwise, to the
party to whom it is directed:
If
to The
Company:
El
Pollo
Loco, Inc.
0000
Xxxxxx Xxxx., Xxxxx 000
Xxxxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxx, Esq.
Telephone:
000-000-0000
Fax:
000-000-0000
If
to
CAC:
Chicken
Acquisition Corp.
0000
Xxxxxx Xxxx., Xxxxx 000
Xxxxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxx, Esq.
Telephone:
000-000-0000
Fax:
000-000-0000
In
either
case, with a copy to:
Xxxxxx
Xxxxxxxx LLP
Xxxxxxxx
Square
000
Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx, Esq.
Telephone:
000-000-0000
Fax:
000-000-0000
8
If
to
Provider:
Trimaran
Fund II, LLC
c/o
Trimaran Fund Management, L.L.C.
1325
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxxx
Telephone:
000-000-0000
Fax:
000-000-0000
With
a
copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Attn:
Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxxxxx
Fax:
000-000-0000
or
at
such other address as such party shall have specified by notice in writing
to
the other parties in accordance with this Section 11.
12. Termination.
This
Agreement shall terminate upon the earlier of (i) issuance of a final
non-appealable Judgment or termination of the Litigation, in each case, pursuant
to which Provider is not obligated to pay any amount and (ii) mutual agreement
of the parties to this Agreement.
13. Amendment.
This
Agreement may not be amended, modified or supplemented and no waivers of or
consents to departures from the provisions hereof may be given unless consented
to in writing by each party to this Agreement. Unless otherwise specified in
such waiver or consent, a waiver or consent given hereunder shall be effective
only in the specific instance and for the specific purpose for which given.
No
failure or delay by the parties to this Agreement in exercising any right
hereunder or under the Fee Agreement shall operate as a waiver
thereof.
14. Entire
Agreement.
The
parties agree that this Agreement and the Payment and Subscription Agreement
contain the entire understanding among the parties hereto relating to the matter
hereof.
9
15. Third
Party Beneficiaries.
Nothing
expressed or implied in this Agreement is intended or shall be construed to
confer upon or give to any third party any rights or remedies against any party
hereto.
16. Specific
Performance.
The
parties acknowledge and agree that any breach of the terms of this Agreement
would give rise to irreparable harm for which money damages would not be an
adequate remedy and accordingly the parties agree that, in addition to any
other
remedies, each party shall be entitled to enforce the terms of this Agreement
by
a decree of specific performance without the necessity of proving the inadequacy
of money damages as a remedy.
10
IN
WITNESS WHEREOF, the Company, CAC and Provider have executed this Agreement
as
of the date first above written.
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EL
POLLO LOCO, INC.
|
||
| |
|
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| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxxxxx X. Xxxxx |
||
| Title: Chief Financial Officer | ||
|
CHICKEN
ACQUISITION CORP.
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Name: Xxxx X. Xxxxxx |
||
| Title: Vice President | ||
|
TRIMARAN
FUND II, LLC
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||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Name: Xxxx X. Xxxxxx |
||
| Title: | ||
11
SCHEDULE
A
Promissory
Note
Term
Sheet
|
Issuer
|
CAC
or the Company, at Provider's option
|
|
|
Term
|
2
Years
|
|
|
Principal
Amount
|
As
elected pursuant to Section 1(c) of the Fee Agreement.
|
|
|
Interest
|
13.25%
compounded annually, which rate shall increase by 0.50% per calendar
quarter (with the first such increase occurring at the beginning
of the
second calendar quarter after Closing) up to a maximum rate of 17.5%
per
annum. Interest shall be paid quarterly at Provider's option, either
in:
(i) cash, (ii) a promissory note having substantially similar terms
to
those set forth in this Exhibit A (iii) Convertible Preferred Stock
of CAC
at a price of $43.22 per share on terms substantially similar to
those set
forth in Exhibit B of the Fee Agreement, or (iv) Common Stock of
CAC at a
price of $43.22 per share.
|
|
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Conversion
|
The
outstanding principal amount of the promissory note plus any accrued
but
unpaid interest shall be convertible, in whole or in part, into,
at
Provider's option, (i) shares of Convertible Preferred Stock of CAC,
at a
price of $43.22 per share on terms substantially similar to those
set
forth in Exhibit B of the Fee Agreement, or (ii) Common Stock of
CAC at a
price of $43.22 per share.
|
|
|
Covenants/Defaults
|
Cross
default with credit agreement and
bonds.
|
12
SCHEDULE
B
Convertible
Preferred Stock
Term
Sheet
|
Issuer
|
CAC
|
|
|
Security
|
Convertible
Preferred Stock
|
|
|
Original
Issue Price
|
$43.22
per share. For purposes of this Term Sheet, the aggregate price for
all
shares of Convertible Preferred Stock issued at a Closing shall be
the
"Preferred Investment Amount."
|
|
|
Voting
Rights
|
Right
to vote with the Common Stock on an As-Converted Basis. See Protective
Covenants below.
|
|
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Dividend
|
Each
share of Convertible Preferred Stock will accrue a dividend, to be
paid
quarterly, equal to 13.25% per annum of the Original Issue Price,
compounded annually, which rate shall increase by 0.50% per calendar
quarter (with the first such increase occurring at the beginning
of the
second calendar quarter after the issuance of such share of Convertible
Preferred Stock) up to a maximum rate of 17.5% per annum.
The
Convertible Preferred Stock will participate on an As-Converted Basis
in
any dividends paid on the Common Stock.
|
|
|
"As
Converted Basis"
|
"As-Converted
Basis" means that Provider will for the relevant purpose be deemed
to hold
the number of shares of Common Stock that it would be entitled to
receive
if its Convertible Preferred Stock had been converted to Common Stock
pursuant to its conversion right on or prior to the relevant
date.
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|
|
Liquidation
Preference
|
Convertible
Preferred Stock shall have a liquidation preference to Common Stock
equal
to the greater of its Original Issue Price or what the Convertible
Preferred Stock would receive on an As Converted Basis upon liquidation.
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|
|
Conversion
|
Each
share of Convertible Preferred Stock will be convertible at any time
into,
at Provider's option, (i) a number of shares of Common Stock equal
to the
quotient of the Original Issue Price plus any accrued but unpaid
dividends
for the Convertible Preferred Stock divided by $43.22, subject to
anti-dilution protection or (ii) a Promissory Note for an amount
equal to
the aggregate Original Issue Price for any shares of Convertible
Preferred
Stock so converted plus the aggregate of any accrued and unpaid dividends
on such shares of Convertible Preferred Stock on terms substantially
similar to those set forth in Exhibit B to the Fee
Agreement.
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13
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Anti-Dilution
Protection
|
Customary
weighted average anti-dilution adjustments.
|
|
|
Ranking
|
Subordinated
and junior to indebtedness, senior to all other capital
stock.
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Protective
Covenants
|
Customary
protective covenants, including: The consent of the holders of Convertible
Preferred Stock will be required for any action that would (i) alter
the
rights, preferences or privileges of the Convertible Preferred Stock;
(ii)
amend any provision of CAC's certificate of incorporation or by-laws
relative to the Convertible Preferred Stock; (iii) increase or decrease
the number of issued or authorized shares of Convertible Preferred
Stock;
(iv) create any series or class of shares having a preference or
priority
as to dividends or assets superior to or on a parity with that of
the
Convertible Preferred Stock, (v) constitute a sale, lease, pledge
or other
disposal of all or substantially all the assets of CAC or a merger,
reorganization or similar transaction, or (vi) constitute a repurchase
or
redemption of other equity securities.
|
|
|
Registration
Rights
|
Customary
rights, as set forth in the Stockholders Agreement.
|
|
|
Tag-Along,
Drag Along, Preemptive Rights, ROFR
|
Customary
rights, as set forth in the Stockholders Agreement.
|
14
SCHEDULE
C
Common
Stock
$43.22
per share.
15
