AMENDMENT NO. 1
TO
MANAGEMENT SUBSCRIPTION AGREEMENT
THIS AMENDMENT NO. 1 TO MANAGEMENT SUBSCRIPTION AGREEMENT (this
"Amendment No. 1") is dated as of November 26, 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
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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 into a single class of common stock and (ii) the
reclassified common stock has been split 863.281-for-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
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SECTION 1. Amendment. Effective as of the date hereof, the parties
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agree that the Management Subscription Agreement shall be amended as follows:
(a) Exhibit 1 to the Management Subscription Agreement shall be
deleted in its entirety and replaced with Exhibit 1 attached hereto.
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(b) Section 8(e) shall be amended by replacing the words "or (b) an
initial public offering of any shares of Stock." with the words "or (b) a public
offering of Common Stock of the Company
with net proceeds to the Company of at least $50 million pursuant to a firm
commitment underwriting."
(c) A new Section 8(g) shall be inserted as follows:
"(g) Conversions, Stock Splits. All repurchases pursuant to this Section
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8 shall apply to shares of capital stock referenced in this Section 8 as
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well as any shares of capital stock held by such Stockholders as a result
of an exchange, conversion, recapitalization, stock split, reverse
stocksplit or other similar reclassification of the capital stock of the
Company."
(d) Section 10(c) shall be amended by replacing the dollar amount "$100"
with the dollar amount "$0.11584."
(e) Section 10 shall be amended by adding the following definition for
common stock in the appropriate alphabetical order and by revising the
subsection numbers of the definition section accordingly:
"(c) "Common Stock" for purposes of Section 8 of this Agreement only,
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shall mean Class D Common Stock of the Company and any shares of Common
Stock received in connection with a conversion or exchange of Class D
Common Stock or other securities into Common Stock of the Company."
SECTION 2. Effect of this Amendment No. 1 on the Other Terms of the
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Management Consulting Agreement. Except as expressly amended and modified
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herein, all other terms of each of the Management Subscription 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
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construed in accordance with the laws of the State of Delaware (excluding
provisions relating to choice of law).
SECTION 4. Necessary Documents. The parties hereto agree to execute or
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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
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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.
-2-
IN WITNESS WHEREOF, each of the undersigned has signed this Agreement:
AMERIKING, 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:
-3-
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
-4-
Subordinated
Notes
No. of Shares (All Value
No. of Shares of Class A\\2\\ No. of Shares of Class B Restaurant of
Name of Common Stock Preferred Stock Preferred Stock Securities) Consideration
--------------------------- ----------------------- ---------------------- ----------------------- ------------- -------------
Set 1 Set 2 Set 1 Set 2 Set 1 Set 2
Securities Securities Securities Securities Securities Securities
---------- ----------- ---------- ---------- ----------- ----------
Xxxxx Restaurants - 7,019 - 87.00 - 29.00 - $ 116,813.13
Associates, Inc.(1)
Jaro Restaurants - 14,786 - 187.50 - 62.50 $ 112,000 $ 363,712.84
Associates, Inc.(2)
Jaro Enterprises, Inc.(3) - 38,301 - 90.00 - 30.00 $1,224,000 $1,348,436.69
JB Restaurants, Inc.(4) - 106,842 - 550.50 - 183.50 $2,019,000 $2,765,376.34
Castleking, Inc.(5) - 23,201 - 187.50 - 62.50 $ 385,769 $ 638,456.63
Xxxxx-Xxxxxx Restaurants, - 28,802 - 97.50 - 32.50 $ 659,231 $ 792,567.37
Inc.(6)
Xxxxxxxx Xxxx 29,101 - - - - - - $ 3,371.00
Xxxxxxx Xxxxxx 29,101 - - - - - - $ 3,371.00
Xxxx Xxxxxx 29,101 - - - - - - $ 3,371.00
Xxxx Xxxxxx 9,703 - - - - - - 1,124.00
Total 97,006 218,951 0 1200 0 400 $4,400,000 $6,036,600.00
OPTIONS
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Xxx Xxxxxxxxx Options to purchase 4,851 shares of Common Stock
Xxxxx Xxxxxxx Options to purchase 4,851 shares of Common Stock
1. Xxxxxxxx Xxxx owns 100% of the common stock of Xxxxx Restaurants
Associates, Inc. All of the Set 2 Securities received by Xxxxx Restaurants
Associates, Inc. will be subject to the repurchase provisions of Section 8.
2. Xxxxxxxx Xxxx owns 100% of the common stock of Jaro Restaurants Associates,
Inc. All of the Set 2 Securities received by Jaro Restaurants Associates,
Inc. will be subject to the repurchase provisions of Section 8.
3. Xxxxxxxx Xxxx owns 100% of the common stock of Jaro Enterprises, Inc. All
of the Set 2 Securities received by Jaro Enterprises, Inc. shall be subject
to the repurchase provisions of Section 8.
4. Xxxxxxxx Xxxx owns 75% of the common stock of JB Restaurants, Inc.
Seventh-five percent (75%) of the Set 2 Securities received by JB
Restaurants, Inc. shall be subject to the repurchase provisions of Section
8.
5. Xxxxxxx Xxxxxx owns 75% of the common stock of Castleking, Inc. Seventy-
five percent (75%) of the Set 2 Securities received Castleking, Inc. will
be subject to the repurchase provisions of Section 8.
6. Xxxxxxx Xxxxxx owns 65% of the common stock of Xxxxx-Xxxxxx Restaurants,
Inc. Sixty-five percent (65%) of the Set 2 Securities received Xxxxx-
Xxxxxx, Inc. will be subject to the repurchase provisions of Section 8.
