Exhibit 10.30
AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (this "Agreement"), made as
of the 27 day of April, 2001, by and among The Xxxxx & Wollensky Restaurant
Group, Inc., a Delaware corporation (the "Company"), Xxxx Xxxxxxxx (the
"Founder"), Xxxxxx X. Xxx Equity Partners, L.P. and Xxxxxx X. Xxx Investors
Limited Partnership (each a "Xxx Xxxxxx" and collectively the "Xxx Holders") and
those Persons listed as Shareholders on the counterpart signature pages hereto
(each individually a "Shareholder" and collectively the "Shareholders").
WHEREAS, the Company, the Founders, the Xxx Holders and the Shareholders
entered into a Shareholders' Agreement dated as of October 31, 1997 (the "Prior
Agreement");
WHEREAS, the Company is contemplating an initial public offering of its
common stock and in connection therewith the parties to the Prior Agreement
desire to amend and restate the Prior Agreement effective upon the consummation
of such public offering;
WHEREAS, the Company, the Founder, the Xxx Holders and Shareholders
holding at least a majority of the Shares held by all Shareholders have executed
and delivered this Amended Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the agreements set
forth below, the parties hereby amend and restate the Prior Agreement as
follows:
1. Effectiveness of Agreement. This Agreement shall only be effective upon
the consummation of an underwritten public offering of shares of the Company's
Common Stock pursuant to a registration statement on Form S-l which has been
declared effective by the U.S. Securities and Exchange Commission prior to
January 31, 2002 (the "IPO").
2. Definition of Shares. As used in this Agreement, "Shares" shall mean
and include all shares of (a) Series A Preferred Stock, including shares of
Common Stock into which such shares of Series A Preferred Stock have been
converted and (b) Common Stock now owned by the parties hereto. Other
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Purchase Agreement.
3. Demand Registrations
(a) Request for Registration. At any time after the six month period
following the consummation of the IPO, the Shareholders holding a majority of
the Shares owned by them (the "Registrable Securities"), may make a written
request to the Company for registration with the Securities and Exchange
Commission (the "Commission") under and in accordance with the provisions of the
Securities Act of all or part of their Registrable Securities (a "Demand
Registration"); provided, however, that (a) no such request may be made with
respect to Registrable Securities with an expected aggregate offering price to
the public of less than $10,000,000; and (b) the Company need only use best
efforts to file a registration statement with
the Commission with respect to up to two (2) such Demand Registrations. Such
request shall specify the aggregate number of Registrable Securities proposed to
be sold. Within ten (10) days after receipt of such request, the Company shall
give written notice (the "Notice") of such registration request to all other
holders of Registrable Securities, specifying those holders who requested
registration and the number of Registrable Securities as to which registration
was requested, and stating that the Company will include in such registration
all Registrable Securities as to which the Company has received written requests
for inclusion therein within twenty (20) days after the giving of the Notice.
Within five (5) days after the expiration of such twenty (20) days, the Company
will notify all of the holders to be included in such registration of the other
holders and the number of Registrable Securities requested to be included
therein.
(b) Participation by Other Parties. No Person other than a holder of
Registrable Securities shall be permitted to offer any securities under any
Demand Registration unless (i) such Person is the Company or is entitled to
exercise "piggyback" registration rights pursuant to contractual commitments
with the Company; and (ii) the holders of Registrable Securities participating
in such Demand Registration and their underwriters, if any, in their sole
discretion, determine that such Demand Registration can accommodate such
additional participation.
(c) Effective Registration and Expenses. A registration will not be
deemed a Demand Registration until it has become effective and until all of the
Registrable Securities included in such registration have actually been sold
thereunder. The Company is under no obligation to prepare and file a Demand
Registration at a time when a registration is effective with respect to the
class of securities proposed to be included in such Demand Registration (except
with respect to a registration on Form S-4 or S-8, or any other form not
available for registering the Registrable Securities for sale to the public).
The Company shall pay all registration expenses in connection with a
registration made pursuant to this Section, whether or not such registration
becomes effective or Registrable Securities are sold thereunder.
(d) Priority on Demand Registrations. If, in the opinion of the
managing underwriter or underwriters of a proposed offering, the number of
Registrable Securities requested to be included in such offering exceeds the
number which can be sold in such offering or is reasonably likely materially and
adversely to affect the success or offering price of such offering (an
"Undersubscribed Offering"), there shall be excluded, to the extent necessary,
shares requested for inclusion in such Undersubscribed Offering, first pro rata
on the basis of the Shares requested to be included by the Company and
shareholders of the Company (other than the Shareholders) exercising piggyback
registration rights with respect to a Demand Registration made by a Shareholder;
and second pro rata on the basis of the Shares requested to be included by each
such holder.
(e) Selection of Underwriters. The Company will select the
investment banker or bankers and managing underwriter or underwriters for each
Demand Registration.
(f) The Shareholders acknowledge the piggyback registration rights
of other shareholders of the Company and agree that any Demand Registration,
subject to the priority on Demand Registrations described in section 3(d) above,
shall include the shares held by such shareholders if so requested by such other
shareholders.
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4. Piggyback Registration
(a) Right to Piggyback. If at any time the Company proposes to file
a registration statement under the Securities Act for any shares of Common Stock
or any options, warrants, units, convertibles, rights or other securities
related or linked to any shares of such Common Stock (except with respect to
registration statements on Form S-4 or S-8, or any other form not available for
registering the Registrable Securities for sale to the public), with respect to
an offering for its own account or for the account of another Person (other than
the holders of Registrable Securities in their capacity as such) of any class of
security (a "Proposed Registration"), then the Company shall in each case give
written notice of such proposed filing to the holders of Registrable Securities
at least twenty (20) days before the anticipated filing date, and shall, subject
to Section 4(b) below, include in such registration statement such amount of
Registrable Securities as each such holder may request within ten (10) days of
the receipt of such notice. The Company shall register such Registrable
Securities on the same terms and subject to the same conditions applicable to
the registration in the Proposed Registration of equity securities to be sold by
the Company or the Person selling under such Proposed Registration; provided
that the Company shall in all events pay registration expenses associated with
the inclusion of Registrable Securities.
(b) Priority on Piggyback Registrations. If in the opinion of the
managing underwriter or underwriters of such offering the number of Registrable
Securities which the holders intend to include in such offering exceeds the
number which can be sold in such offering or is reasonably likely materially and
adversely to affect the success or offering price of such offering, then the
amount of securities to be offered for the accounts of holders of such
securities shall be reduced, (i) in the case of a registration initiated by the
Company for its own account, pro rata on the basis of the shares requested to be
included, or (ii) in the case of a registration initiated by and for the account
of another Person, first pro rata on the basis of shares requested to be
included by all shareholders exercising piggyback registration rights with
respect to such registration and second pro rata, on the basis of shares held by
persons exercising demand registration rights with respect to such registration,
in either case in accordance with the number of such securities held by such
holders requested to be included in such registration.
(c) Selection of Underwriters. The Company will select a managing
underwriter or underwriters to administer each Piggyback Registration.
5. Registration on Form S-3. The Company shall use its best efforts to
qualify for registration under Form S-3 or any comparable or successor form; and
to that end the Company shall register (whether or not required by law to do so)
the Registrable Securities under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") following the effective date of the Initial Public
Offering. After the Company is qualified for the use of Form S-3, in addition to
the rights contained in the foregoing provisions of this Agreement, the holders
of the Registrable Securities shall have the right to request registrations on
Form S-3 (such requests shall be in writing and shall state the number of shares
of Registrable Securities to be disposed of and the intended methods of
disposition of such shares by such holders); provided. however, that the Company
shall not be obligated to effect any such registration pursuant to this Section
more than three times in any 12 month period.
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6. Indemnification. The Company will indemnify each Shareholder, each of
its officers, directors and partners, and each person controlling such
Shareholder within the meaning of the Securities Act, with respect to which
registration has been effected pursuant to this Agreement against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular, other document or
amendment, supplement thereto or document incorporated by reference in any such
document (including any related registration statement, notification or the
like) incident to any such registration or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or the Exchange Act unless such statement or
omission was made in reliance upon written information supplied to the Company
by a Shareholder.
7. Restrictions on Public Sale by Holders of Registrable Securities.
(a) If the Company, in its good faith judgment, determines that any
registration of Registrable Securities should not be made or continued because
it would materially interfere with any material financing, acquisition or other
transaction then under active negotiation by the Company (a "Valid Business
Reason"), the Company may postpone filing a registration statement relating to a
Demand Registration, or any other registration in which holders have requested
to have Registrable Securities included until such Valid Business Reason no
longer exists, but in no event for more than 120 days, and in no event more than
once in any 18 month period. No registration postponed pursuant to this Section
7 shall be deemed a Demand Registration until the effectiveness of the
registration statement relating thereto. The Company shall give written notice
to the holders who have Registrable Securities registered of its determination
to postpone or withdraw a registration statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each
case, promptly after the occurrence thereof
(b) In the event that the Company initiates an Initial Public
Offering, no Shareholder shall transfer any securities without the prior written
consent of the underwriters managing the offering (i) for a period beginning
seven (7) days immediately preceding and ending on the one hundred and eightieth
(180th) day following the effectiveness of the Registration Statement filed in
connection with the Initial Public Offering; and (ii) for a period beginning
seven (7) days immediately preceding and ending on the one hundred and eightieth
(180th) day following the effectiveness of the Registration Statement filed in
connection with any subsequent public offering, or such lesser period as may be
consented to in writing by the underwriters managing such subsequent public
offering. Subject to provisions herein with respect to priority of registration,
in the event market stand off terms to which officers, directors and employees
of the Company are subject are more favorable than those terms contained in this
Section 7(b), the terms in this Section 7(b) shall be revised such that such
terms shall be equivalent to those available to officers, directors and
employees of the Company.
8. Notices. Notices given hereunder shall be deemed to have been duly
given on the date of personal delivery or on the date of postmark if mailed by
certified or registered mail, return receipt requested, to the party being
notified at his or its address specified on Schedule I hereto or the signature
pages hereto or such other address as the addressee may subsequently
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notify the other parties of in writing or in the case of notices to the Company
at 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
9. Entire Agreement and Amendments. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and neither
this Agreement nor any provision hereof may be waived, modified, amended or
terminated except by a written agreement signed by the parties hereto; provided,
however, that Shareholders owning at least a majority of the Shares held by
Shareholders together with the Company, the Founder, and the Xxx Holders may
effect any such waiver, modification, amendment or termination on behalf of all
of the Shareholders. Each of the Shareholders represents that he or it is not a
party to any other agreement which would prevent him or it from performing his
or its obligations hereunder. No waiver of any breach or default hereunder shall
be considered valid unless in writing, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
10. Governing Law; Successors and Assigns. This Agreement shall be
governed by the internal laws of the State of Delaware (or the laws of such
other state in which the Company is then incorporated) without giving effect to
the conflicts of laws principles thereof and, except as otherwise provided
herein, shall be binding upon the heirs, personal representatives, executors,
administrators, successors and assigns of the parties.
11. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
12. Captions. Captions are for convenience only and are not deemed to be
part of this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
* * *
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THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC.
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
FOUNDER: COMPANY:
XXXX XXXXXXXX THE XXXXX & WOLLENSKY RESTAURANT
GROUP, INC.
By:
------------------------------------ -------------------------------------
Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx
Title: President
XXX HOLDERS:
XXXXXX X. XXX EQUITY PARTNERS, L.P.
By: THL Equity Advisors Limited
Partnership
By: THL Equity Trust
By:
-------------------------------------
Name:
Title:
XXXXXX X. XXX INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp.
By:
-------------------------------------
Name:
Title:
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THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC.
AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
Counterpart Signature Page
By execution of this counterpart signature page, the undersigned hereby
agrees to amend and restate the Prior Agreement (as defined in the attached
Amended and Restated Shareholders' Agreement) and agrees that the undersigned
shall be bound by and obtain the benefit of the rights and restrictions
contained in the Amended and Restated Shareholders' Agreement as if the
undersigned were an original signatory to the Amended and Restated Shareholders'
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this counterpart
signature page as of the ____ day of ______________, 2001.
SHAREHOLDER:
(CORPORATION, PARTNERSHIP (INDIVIDUAL SIGNATURE)
OR TRUST SIGNATURE)
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Name of Entity (Print) Name (Print)
By:-------------------------------- -----------------------------------------
(Signature) (Signature)
-----------------------------------
Name (Print)
-----------------------------------
Title (Print)
NOTICE ADDRESS:
-----------------------------------
Xxxxxx Xxxxxxx
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Xxxx Xxxxx Zip Code
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SCHEDULE I
Company
The Xxxxx & Wollensky Restaurant Group, Inc.
Attn: Xxxx Xxxxxxxx
Fax:(000) 000-0000
Xxx Holders
Xxxxxx X. Xxx Equity Partners, L.P.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: X. Xxxxxx Xxxx
Fax: (000) 000-0000
Xxxxxx X. Xxx Investors Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX
Attn: X. Xxxxxx Xxxx
Fax: (000) 000-0000
Founder
Xxxx Xxxxxxxx
c/o The New York Restaurant Group, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
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