EXECUTION VERSION
STOCK PURCHASE AGREEMENT
BY AND AMONG
THE RESTAURANT COMPANY,
TRC HOLDING LLC,
WILSHIRE RESTAURANT GROUP, INC.
AND
THE INDIVIDUALS AND ENTITIES LISTED ON EXHIBIT A ATTACHED HERETO
DATED AS OF MAY 3, 2006
ARTICLE I DEFINITIONS AND TERMS................................................1
1.01 SPECIFIC DEFINITIONS...........................................1
1.02 OTHER DEFINITIONAL PROVISIONS..................................5
ARTICLE II PURCHASE AND SALE...................................................5
2.01 EXCHANGE OF SHARES.............................................5
2.02 THE CLOSING....................................................6
2.03 CLOSING DELIVERIES.............................................6
2.04 TERMINATION OF STOCKHOLDERS AGREEMENTS.........................6
2.05 TERMINATION OF VOTING TRUST AGREEMENT..........................7
2.06 TERMINATION OF OPTIONS.........................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS..........................7
3.01 OWNERSHIP OF SHARES............................................7
3.02 AUTHORIZATION..................................................7
3.03 BINDING EFFECT.................................................7
3.04 NO VIOLATIONS..................................................7
3.05 CONSENTS AND APPROVALS.........................................8
3.06 INVESTMENT REPRESENTATION......................................8
3.07 RESTRICTED SECURITIES..........................................8
3.08 RESIDENCY......................................................8
3.09 ACCREDITED INVESTOR............................................8
3.10 INVESTMENT INTENT..............................................8
3.11 LEGEND.........................................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF WRG...............................9
4.01 ORGANIZATION...................................................9
4.02 CAPITALIZATION.................................................9
4.03 AUTHORIZATION.................................................10
4.04 NO VIOLATIONS.................................................10
4.05 CONSENTS AND APPROVALS........................................10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF TRCH..............................10
5.01 ORGANIZATION..................................................10
5.02 CAPITALIZATION................................................10
5.03 AUTHORIZATION.................................................11
5.04 NO VIOLATIONS.................................................11
5.05 CONSENTS AND APPROVALS........................................11
ARTICLE VI COVENANTS..........................................................11
6.01 REASONABLE BEST EFFORTS.......................................11
6.02 DIRECTOR AND OFFICER COVERAGE; FIDUCIARY COVERAGE.............12
6.03 OPTIONS.......................................................12
6.04 WARRANTS......................................................12
6.05 FURTHER ASSURANCES............................................12
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ARTICLE VII CONDITIONS TO CLOSING.............................................12
7.01 GENERAL CONDITIONS............................................12
7.02 CONDITIONS TO OBLIGATIONS OF SELLERS AND WRG..................13
7.03 CONDITIONS TO OBLIGATIONS OF TRCH AND TRC.....................13
ARTICLE VIII GENERAL PROVISIONS...............................................13
8.01 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.....13
8.02 EXPENSES......................................................14
8.03 AMENDMENT.....................................................14
8.04 ASSIGNMENT....................................................14
8.05 WAIVER........................................................14
8.06 NOTICES.......................................................14
8.07 HEADINGS AND SCHEDULES........................................15
8.08 APPLICABLE LAW................................................15
8.09 NO THIRD PARTY RIGHTS.........................................15
8.10 COUNTERPARTS..................................................15
8.11 SEVERABILITY..................................................15
8.12 ENTIRE AGREEMENT..............................................15
8.13 SELLERS' REPRESENTATIVE.......................................15
8.14 CONSENT TO JURISDICTION; JURY TRIAL; VENUE....................16
8.15 FAIR CONSTRUCTION.............................................17
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of May 3, 2006, is by and among The
Restaurant Company, a Delaware corporation ("TRC"), TRC Holding LLC, a Delaware
limited liability company and the indirect parent of TRC ("TRCH"), Wilshire
Restaurant Group, Inc., a Delaware corporation ("WRG"), the shareholders of WRG
(each individually a "SHAREHOLDER" and collectively, the "SHAREHOLDERS"), the
optionholder of WRG (the "OPTIONHOLDER"), and the warrantholders of WRG (each
individually a "WARRANTHOLDER" and collectively, the "WARRANTHOLDERS"). The
Shareholders, Optionholder and Warrantholders shall be collectively referred to
herein as the "Sellers."
RECITALS
WHEREAS, as of the date hereof, the Shareholders own those shares of Class
A Common Stock, par value $0.001 per share (the "CLASS A COMMON STOCK"), and
Preferred Stock, par value $0.001 per share (the "PREFERRED STOCK"), each as set
forth opposite such Shareholder's name on EXHIBIT A attached hereto (the "SHARES
OF STOCK"), which constitute all of the issued and outstanding shares of capital
stock of WRG;
WHEREAS, as of the date hereof, pursuant to the vesting provisions
contained in the option agreement, the Optionholder has the option to purchase
that number of shares of Class A Common Stock, as set forth opposite the
Optionholder's name on EXHIBIT A attached hereto (the "OPTIONS"), which
constitute all of the issued and outstanding options to purchase shares of
capital stock of WRG;
WHEREAS, as of the date hereof, the Warrantholders own those warrants of
WRG to purchase that number of shares of Class A Common Stock and Preferred
Stock of WRG, each as set forth opposite such Warrantholder's name on EXHIBIT A
attached hereto (the "WARRANTS" and, collectively with the Shares of Stock and
the Options, the "SHARES"), which constitute all of the issued and outstanding
warrants to purchase shares of capital stock of WRG;
WHEREAS, TRCH, through its indirect, wholly-owned subsidiary, TRC, has
agreed to purchase from the Sellers, and the Sellers desire to sell to TRC, the
Shares, in exchange for Units of TRCH, pursuant to the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, in connection with the consummation of the transactions
contemplated by this Agreement, WRG will become a direct, wholly-owned
subsidiary of TRC.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
1.01 SPECIFIC DEFINITIONS. As used in this Agreement, the following terms
have the following meanings:
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"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with, such Person.
For purposes of this definition, "control" (including, with correlative meaning,
the terms "controlling," "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person through the ownership of
such Person's voting securities, by contract or otherwise.
"AGREEMENT" means this Stock Purchase Agreement, as the same may be amended
or supplemented from time to time in accordance with its terms.
"AUTHORIZED ACTION" has the meaning specified in SECTION 8.13(C).
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banks in New York City are authorized or obligated by Law or executive
order to close.
"CLASS A COMMON STOCK" has the meaning specified in the RECITALS.
"CLASS B COMMON STOCK" has the meaning specified in SECTION 4.02.
"CLASS A UNIT" means a unit representing a fractional part of the ownership
of TRCH and having the rights, preferences and obligations specified with
respect to Class A Units in the TRCH Operating Agreement.
"CLASS B UNIT" means a unit representing a fractional part of the ownership
of TRCH and having the rights, preferences and obligations specified with
respect to Class B Units in the TRCH Operating Agreement.
"CLOSING" means the closing of the transactions contemplated by this
Agreement.
"CLOSING DATE" means the date on which the Closing occurs.
"CONSENT" means any consent, waiver, approval, authorization, notification,
exemption, registration or declaration.
"CONTRACT" means, whether oral or written, any agreement, contract, lease,
license, franchise, note, bond, mortgage, indenture, guarantee, purchase or sale
order or other instrument or obligation, arrangement or commitment, including
all amendments thereto.
"COVERAGE PERIOD" has the meaning specified in SECTION 6.02.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any court, administrative agency or
commission, self-regulatory organization, or other regulatory body or other
foreign or domestic governmental or quasi-governmental authority or
instrumentality.
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"INDEBTEDNESS" means, as applied to WRG and its Subsidiaries, all
indebtedness of the applicable company or any of its Subsidiaries for borrowed
money, whether current or funded, or secured or unsecured, including, without
limitation, (a) all indebtedness of any such Person for the deferred purchase
price of property or services, excluding trade accounts payable, (b) all
indebtedness of any such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (c) all indebtedness of any such Person secured by a purchase money
mortgage or other Lien to secure all or part of the purchase price of the
property subject to such mortgage or Lien, (d) all the obligations under leases
which shall have been or are required to be, in accordance with GAAP, recorded
as capital leases in respect of which such Person is liable as a lessee, (e) all
interest, fees, penalties (including pre-payment penalties) and other expenses
owed (or to be owed in connection with the repayment thereof) with respect to
the indebtedness referred to above, and (f) all indebtedness referred to above
which is directly or indirectly guaranteed by such Person or which such Person
has agreed (contingently or otherwise) to purchase or otherwise acquire or in
respect of which it has otherwise assured a creditor against loss.
Notwithstanding the foregoing, "Indebtedness" shall not include (i) indebtedness
owing by the applicable company to any of its Subsidiaries, or by any Subsidiary
of the applicable company to the applicable company or any other Subsidiary of
the applicable company, (ii) outstanding and unpaid checks issued by the
applicable company or any of its Subsidiaries, or (iii) any letters of credit
outstanding as of the date hereof.
"JUDGMENTS" means any judgments, injunctions, orders, decrees, writs,
rulings or awards of any court or other judicial authority or any governmental,
administrative or regulatory authority of competent jurisdiction.
"LAWS" means any Federal, provincial, state, local, municipal,
international or foreign law, statute, ordinance, code, rule, regulation,
judgment, order or decree.
"LIENS" means all liens, mortgages, pledges, easements, charges, security
interests, options or other encumbrances.
"MC" means Xxxxx Xxxxxxxxx Pie Shops, Inc., a California corporation.
"MC BUSINESS" means the operation and/or franchising of full service
restaurants in the family restaurant segment under the "Xxxxx Xxxxxxxxx'x"
trademark or any derivation thereof by WRG and its Subsidiaries and as conducted
as of the date hereof.
"OPTIONS" has the meaning specified in the RECITALS.
"PERKINS BUSINESS" means the operation and/or franchising of full service
restaurants in the family restaurant segment under the "Perkins" Trademark or
any derivation thereof or bakery and food service distribution under the
"Foxtail Food" Trademark or any derivation thereof, in each case by TRCH and its
Subsidiaries, and in each case as conducted as of the date hereof.
"PERMITS" means all permits, franchises, authorizations, approvals,
registrations, waivers, accreditations, licenses, certificates or variances
granted by or obtained from any Federal, state or local governmental,
administrative or regulatory authority.
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"PERSON" means an individual, a corporation, a limited liability company, a
partnership, joint venture, an association, an estate, a trust or other entity
or organization, including a government or political subdivision or an agency or
instrumentality of a government or political subdivision.
"PREFERRED STOCK" has the meaning specified in the RECITALS.
"PROCEEDING" means any action, suit, demand, claim or legal,
administrative, arbitration or other alternative dispute resolution proceeding,
or any hearing or investigation by a Governmental Authority.
"PROPORTIONATE SHARE" for any Seller means a proportion determined by
dividing (a) the number of shares of Preferred Stock set forth opposite such
Seller's name on EXHIBIT A attached hereto (including all of the shares of
Preferred Stock owned by such Seller as a result of the exercise of all of his,
her or its Warrants) by (b) the total number of shares of Preferred Stock held
by all of the Sellers (including all of the shares of Preferred Stock owned by
the Sellers as a result of the exercise of all of the Warrants).
"PUNITIVE DAMAGES" means damages other than compensatory damages which may
be awarded against a Person to punish such Person or to deter future wrongdoing.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SELLERS" has the meaning specified in the RECITALS.
"SELLERS' REPRESENTATIVE" has the meaning specified in SECTION 8.13.
"STOCKHOLDERS AGREEMENTS" means (i) that certain Stockholders Agreement,
dated as of November 12, 1999 (as amended, modified or supplemented from time to
time), by and among WRG, Xxxxxx Xxxxxx Partners III, L.P. and the other
stockholders party thereto and (ii) that certain Stockholders Agreement, dated
as of June 29, 2000 (as amended, modified or supplemented from time to time), by
and among WRG, Xxxxxx Xxxxxx Partners III, L.P., Frogmore Family Fund, L.L.C.,
BancBoston Investments, Inc., Eagle Mezzanine Partners I, LLC, Allied Capital
Corporation and the other parties thereto.
"SHARES" has the meaning specified in the RECITALS.
"STOCK OPTION PLAN" means the Wilshire Group, Inc. 1999 Stock Option Plan,
as amended.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association, partnership, limited liability company, trust or other entity of
which more than 50% of the total voting power, whether by way of contract or
otherwise, of shares of capital stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
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"TRANSACTION DOCUMENTS" shall mean this Agreement and any other
certificate, agreement, document or other instrument to be executed and
delivered in connection with the transaction contemplated by this Agreement.
"TRCH OPERATING AGREEMENT" means that certain amended and restated
operating agreement of TRCH, dated September 21, 2005 (as amended, modified or
supplemented from time to time).
"TRCH REGISTRATION RIGHTS AGREEMENT" means that certain registration rights
agreement of TRCH, dated as of September 21, 2005 (as amended, modified or
supplemented from time to time).
"TRCH UNITHOLDERS AGREEMENT" means that certain unitholders agreement of
TRCH, dated as of September 21, 2005 (as amended, modified or supplemented from
time to time).
"UNITED STATES" means the United States of America, its territories and
possessions, any state of the United States and the District of Columbia.
"UNITS" means the Class A Units and Class B Units issued or issuable to, or
owned by, the unitholders of TRCH.
"VOTING TRUST AGREEMENT" means that certain Voting Trust Agreement, dated
as of November 12, 1999 (as amended, modified or supplemented from time to
time), by and among WRG, Xxxx X. Xxxxxx as the "VOTING TRUSTEE", and each of the
stockholders listed on the signature pages thereto.
"WARRANTS" has the meaning specified in the RECITALS.
1.02 OTHER DEFINITIONAL PROVISIONS. (a) All references to Articles and
Sections are references to Articles and Sections of this Agreement. All
references to Schedules are references to Schedules of the Disclosure
Memorandum.
(b) Terms defined in the singular have a comparable meaning when used
in the plural, and vice versa.
(c) The words "INCLUDE", "INCLUDES" and "INCLUDING" mean include,
includes and including without limitation.
(d) The terms "DOLLARS" and "$" mean United States dollars.
ARTICLE II
PURCHASE AND SALE
2.01 EXCHANGE OF SHARES. (a) Upon the terms and subject to the conditions
of this Agreement, at the Closing, each Seller shall sell, transfer, convey,
assign and deliver to TRC all of such Sellers' rights, title and interest in and
to his, her or its Shares, free and clear of all Liens, and TRCH shall issue to
each such Seller his, her or its Units as determined pursuant to Section 2.01(b)
hereof.
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(b) Upon the terms and subject to the conditions of this Agreement,
each Seller owning Preferred Stock and Class A Common Stock shall exchange the
number of shares of Preferred Stock designated in the column "Preferred Stock"
and the number of shares of Class A Common Stock in the column "Class A Common
Stock" corresponding to such Seller as set forth on EXHIBIT A attached hereto
for that number of newly issued securities comprised of Class A Units and Class
B Units of TRCH as set forth on EXHIBIT A; PROVIDED, HOWEVER, that in
consideration of WRG's termination of (i) the Secured Promissory Note, dated
November 12, 1999, by Xxxxxxx Xxxxxx in favor of WRG, in the original principal
amount of $480,000, the number of Class A Units and Class B Units of TRCH
Xxxxxxx Xxxxxx shall receive in exchange for his Shares shall include a
reduction of Class A Units and Class B Units, the value of which shall equal the
value attributed under this Agreement to 273 shares of Preferred Stock as set
forth on EXHIBIT A; (ii) the Secured Promissory Note, dated November 12, 1999,
by Xxxxxx Xxxxxx in favor of WRG, in the original principal amount of $250,000,
the number of Class A Units and Class B Units of TRCH Xxxxxx Xxxxxx shall
receive in exchange for his Shares shall include a reduction of Class A Units
and Class B Units, the value of which shall equal the value attributed under
this Agreement to 142 shares of Preferred Stock as set forth on EXHIBIT A; and
(iii) the Secured Promissory Note, dated November 12, 1999, by Xxxxxxx Xxxxxx in
favor of WRG, in the original principal amount of $90,000, the number of Class A
Units and Class B Units of TRCH Xxxxxxx Xxxxxx shall receive in exchange for his
Shares shall include a reduction of Class A Units and Class B Units, the value
of which shall equal the value attributed under this Agreement to 51 shares of
Preferred Stock as set forth on EXHIBIT A.
(c) Each Seller and each Unit issued to a Seller hereunder shall be
subject to the terms and conditions of the TRCH Operating Agreement, the TRCH
Registration Rights Agreement and the TRCH Unitholders Agreement.
2.02 THE CLOSING. Subject to the terms and conditions of this Agreement,
the Closing shall take place at 10:00 a.m., New York time, at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the
date of this Agreement.
2.03 CLOSING DELIVERIES. At the Closing, each Seller shall deliver or cause
to be delivered to TRC the stock, warrant or option certificates representing
all of the Shares held by such Seller that are in certificated form. Such
certificates shall be endorsed in blank or accompanied by duly executed stock
powers or, in the event any such certificate has been lost, stolen or destroyed,
an affidavit of loss with respect to such Shares, in a form reasonably
acceptable to TRCH. At the Closing, TRCH shall deliver or cause to be delivered
to each Seller (i) the consideration specified in SECTION 2.01 and (ii) joinders
to the TRCH Operating Agreement, the TRCH Registration Rights Agreement and the
TRCH Unitholders Agreement executed by each Seller and TRCH in the forms
attached hereto as EXHIBIT B, EXHIBIT C and EXHIBIT D.
2.04 TERMINATION OF STOCKHOLDERS AGREEMENTS. Simultaneous with but subject
to the Closing, the Stockholders Agreements shall terminate without any further
action by WRG or the Sellers.
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2.05 TERMINATION OF VOTING TRUST AGREEMENT. Simultaneous with but subject
to the Closing, the Voting Trust Agreement shall terminate without any further
action by WRG, the Voting Trustee or the Sellers.
2.06 TERMINATION OF OPTIONS. Xxxxxxx Xxxxxx agrees that his Options shall,
simultaneous but subject to the Closing, be cancelled and shall not thereafter
be exercisable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
3.01 OWNERSHIP OF SHARES. Such Seller is, or in the case of shares of
Preferred Stock or Class A Common Stock issuable upon exercise of the Options or
the Warrants will be, the owner, beneficially and of record, of the Shares
listed next to such Seller's name on EXHIBIT A attached hereto and such Shares
are as of the date hereof, and as of the Closing will be, free and clear of any
and all Liens. In the case of any Seller that is an individual, such Seller's
Shares are not subject to any spousal rights or similar restrictions or such
Seller's spouse has executed this Agreement, evidencing such spouse's consent to
the execution, delivery and performance of this Agreement by such Seller and
such spouse, as applicable.
3.02 AUTHORIZATION. Such Seller has the requisite power and authority or
legal capacity to execute and deliver this Agreement and each of the other
Transaction Documents and to perform its obligations under this Agreement and
each of the other Transaction Documents. The execution, delivery and performance
of this Agreement by such Seller has been duly and validly authorized by all
necessary action of such Seller and no additional authorization on the part of
such Seller is necessary in connection with the execution, delivery and
performance by such Seller of this Agreement, and the execution, delivery and
performance of each of the other Transaction Documents by such Seller will be
duly and validly authorized by all necessary action of such Seller.
3.03 BINDING EFFECT. This Agreement has been, and each of the other
Transaction Documents will be, duly executed and delivered by such Seller and
this Agreement is, and each of the other Transaction Documents will be, when
executed and delivered, a legal, valid and binding obligation of such Seller,
enforceable against such Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar Laws affecting creditors' rights
generally and to general principles of equity.
3.04 NO VIOLATIONS. The execution, delivery and performance by such Seller,
of this Agreement and the other Transaction Documents and the consummation of
the transactions contemplated by this Agreement and the other Transaction
Documents do not and will not (a) conflict with or violate any provision of the
articles of incorporation, bylaws or other organizational documents of such
Seller, (b) conflict with, or result in the breach of, or constitute a default
under, or result in the termination, cancellation or acceleration (whether after
the giving of notice or the lapse of time or both) of any right or obligation of
such Seller under any Contract to which such Seller is a party or to which any
of its assets or properties is subject or (c) violate or result in a breach of,
or constitute a default under, any Law or Judgment applicable to such Seller or
by which such Seller or any of its assets or properties is bound or affected,
except, in the cases of clauses (b) and (c), for any conflict, breach, default,
termination, cancellation,
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acceleration or violation which, individually or in the aggregate, would not
reasonably be expected to materially impair such Seller's ability to effect the
Closing.
3.05 CONSENTS AND APPROVALS. No Consent is required to be obtained by such
Seller from, and no notice or filing is required to be given by such Seller to,
or made by such Seller with, any Federal, state, local, foreign or other
Governmental Authority or other Person in connection with the execution,
delivery and performance by the Sellers of this Agreement or the other
Transaction Documents, other than in all cases where the failure to obtain such
Consent or to give or make such notice or filing would not, individually or in
the aggregate, reasonably be expected to materially impair such Seller's ability
to effect the Closing.
3.06 INVESTMENT REPRESENTATION. Such Seller acknowledges that the Units
being issued to such Seller are not registered under the securities laws of any
jurisdiction and that such Seller is acquiring such Units for such Seller's own
account, not as a nominee or agent, for investment, and not with a view to the
distribution thereof. Such Seller is a sophisticated investor with knowledge and
experience in financial and business matters, is capable of evaluating the risks
and merits of such Seller's investment in the Units and has the capacity to
protect such Seller's own interests. Such Seller is in a financial position to
hold the Units for an indefinite period of time and is able to bear the economic
risk and withstand a complete loss of his, her or its investment in the Units.
Such Seller acknowledges that TRCH has given him, her or it the opportunity to
ask questions of the officers and management employees of TRCH and its
Subsidiaries, to obtain additional information about the assets, liabilities,
prospects, indebtedness, business and financial condition of TRCH and its
Subsidiaries, and access to the facilities, properties, books and records
relating to the Perkins Business and the MC Business in order to evaluate the
investment in the Units contemplated hereby. In addition to and not by way of
limitation of the foregoing, such Seller acknowledges that an Affiliate of TRCH
has entered into a management agreement with TRCH and one or more of its
Subsidiaries that will provide such Affiliate annual management fees and other
rights and benefits in connection therewith.
3.07 RESTRICTED SECURITIES. Such Seller understands that the Units are
being issued to such Seller, are characterized as "restricted securities" under
the Federal securities laws inasmuch as they are being acquired from TRCH in a
transaction not involving a public offering, and that under such laws and
applicable regulations such securities may not be resold without registration
under the Securities Act unless an exemption from registration thereunder is
available. Such Seller represents that it is familiar with Rule 144 promulgated
under the Securities Act as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
3.08 RESIDENCY. The jurisdiction of organization of such Seller that is not
a natural Person and the residence of such Seller that is a natural Person is
set forth on EXHIBIT A.
3.09 ACCREDITED INVESTOR. Such Seller is an "accredited investor" as
defined in Rule 501(a) of Regulation D under the Securities Act.
3.10 INVESTMENT INTENT. The Units being issued to such Seller are being
acquired by such Seller for investment for his, her or its respective account,
not as a nominee or agent, and not with a view to the distribution of any part
thereof; such Seller has no present intention of
8
selling, granting any participation in or otherwise distributing any of the
Units in a manner contrary to the Securities Act or to any applicable state
securities or blue sky law, or under the TRCH Unitholders Agreement or the TRCH
Operating Agreement, nor does such Seller have any Contract with any Person to
sell, transfer or grant a participation to such Person with respect to any of
the Units.
3.11 LEGEND. If certificated, the certificates evidencing the Units shall,
in addition to those provided for in the TRCH Operating Agreement and the TRCH
Unitholders Agreement, bear the following legend:
"The membership interests represented by this certificate have
not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and such membership interests
may not be offered, sold, pledged or otherwise transferred
except (1) pursuant to an exemption from, or in a transaction
not subject to, the registration requirements under the
Securities Act or (2) pursuant to an effective registration
statement under the Securities Act, in each case in accordance
with any applicable securities laws of any State of the United
States."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WRG
4.01 ORGANIZATION. WRG and its Subsidiaries are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of formation and have full corporate power and authority to conduct their
business as it is now being conducted and to own, lease and operate their
properties where now conducted, owned, leased or operated.
4.02 CAPITALIZATION. The authorized capital stock of WRG consists of
600,000 shares, consisting of (i) 200,000 shares of preferred stock, par value
$0.001 per share, of which 200,000 shares are designated Preferred Stock, (ii)
200,000 shares of Class A Common Stock, par value $0.001 per share, and (iii)
200,000 shares of Class B Common Stock, par value $0.001 per share. As of the
date hereof, there are 42,040.657 shares of Preferred Stock issued and
outstanding and 42,040.657 shares of Class A Common Stock issued and
outstanding. All of such issued and outstanding Shares are (or will be in the
case of the shares of Preferred Stock and Class A Common Stock to be issued upon
exercise of the Options and the Warrants) held beneficially and of record by the
Sellers. As of the date hereof, there are outstanding Options to purchase 1,439
shares of Class A Common Stock. As of the date hereof, there are outstanding
Warrants to purchase 15,199.1313 shares of Preferred Stock and 14,499.7193
shares of Class A Common Stock. All of the issued and outstanding shares of
Preferred Stock and all of the issued and outstanding shares of Class A Common
Stock have been (or will be in the case of (x) the shares of Class A Common
Stock to be issued upon exercise of the Options) and (y) the shares of Preferred
Stock and Class A Common Stock to be issued upon exercise of the Warrants) duly
authorized and are validly issued, fully paid and nonassessable, free of all
preemptive or similar rights. Except for the Options and the Warrants, there are
no outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights or other contracts or commitments
that could require WRG or any Subsidiaries to issue, sell or otherwise
9
cause to become outstanding any of its Shares. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation or similar
rights with respect to WRG or its Subsidiaries.
4.03 AUTHORIZATION. The transactions contemplated by this Agreement have
been and the transaction contemplated by the other Transaction Documents will be
approved by all necessary corporate action of WRG, including approval of the
transactions contemplated by this Agreement by WRG's stockholders. No additional
authorization on the part of WRG is necessary in connection with the execution
and delivery of this Agreement by WRG and the consummation of the transactions
contemplated by this Agreement.
4.04 NO VIOLATIONS. The execution, delivery and performance by WRG of this
Agreement and the other Transaction Documents and the consummation of the
transactions contemplated by this Agreement and the other Transaction Documents
do not and will not (1) conflict with or violate any provision of the
certificate of incorporation, by-laws or other organizational documents of WRG
or any of its Subsidiaries, (2) conflict with, or result in the breach of, or
constitute a default under, or result in the termination, cancellation or
acceleration (whether after the giving of notice or the lapse of time or both)
of any right or obligation of WRG or any of its Subsidiaries under, any material
Contract, (3) violate or result in a breach of or constitute a default under,
any Law or Judgment applicable to WRG or any of its Subsidiaries or by which WRG
or any of its Subsidiaries or any of their assets or properties is bound or
affected, (4) result in the imposition or creation of any Liens upon or with
respect to any of the assets owned or used by WRG or its Subsidiaries, or (5)
cause the suspension or revocation of any Permit necessary for WRG or any of its
Subsidiaries to conduct the MC Business as currently conducted.
4.05 CONSENTS AND APPROVALS. No Consent is required to be obtained by WRG
from, and no notice or filing is required to be given by WRG to, or made by WRG
with, any Federal, state, local, foreign or other Governmental Authority or
other Person in connection with the execution, delivery and performance by the
Sellers or WRG of this Agreement or the other Transaction Documents, other than
in all cases where the failure to obtain such Consent or to give or make such
notice or filing would not, individually or in the aggregate, reasonably be
expected to be material to the operation of the MC Business or adversely affect
the ability of WRG or the Sellers to consummate the transactions contemplated
hereby and by the other Transaction Documents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TRCH
5.01 ORGANIZATION. TRCH and its Subsidiaries are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of formation and have full corporate power and authority to conduct their
business as it is now being conducted and to own, lease and operate their
properties where now conducted, owned, leased or operated.
5.02 CAPITALIZATION. As of the date hereof, without giving effect to the
transactions contemplated hereby, there are 657,230.73692 Class A Units and
657,230.73692 Class B Units issued and outstanding. All of the issued and
outstanding Class A Units and Class B Units have
10
been duly authorized and are validly issued, fully paid and nonassessable, free
of all preemptive or similar rights. Except as set forth in the TRCH Unitholders
Agreements and the TRCH Operating Agreement, there are no outstanding or
authorized options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights or other contracts or commitments that could require
TRCH or any Subsidiaries to issue, sell or otherwise cause to become outstanding
any of its Units or shares as applicable.
5.03 AUTHORIZATION. The transactions contemplated by this Agreement and the
other Transaction Documents have been approved by all necessary limited
liability company action of TRCH, including approval of the transactions
contemplated by this Agreement by a majority of the outstanding Class B Units.
No additional authorization on the part of TRCH is necessary in connection with
the execution and delivery of this Agreement by TRCH and the consummation of the
transactions contemplated by this Agreement.
5.04 NO VIOLATIONS. The execution, delivery and performance by TRCH of this
Agreement and the other Transaction Documents and the consummation of the
transactions contemplated by this Agreement and the other Transaction Documents
do not and will not (1) conflict with or violate any provision of the
certificate of incorporation, by-laws or other organizational documents of TRCH
or any of its Subsidiaries, (2) conflict with, or result in the breach of, or
constitute a default under, or result in the termination, cancellation or
acceleration (whether after the giving of notice or the lapse of time or both)
of any right or obligation of TRCH or any of its Subsidiaries under, any
material Contract, (3) violate or result in a breach of or constitute a default
under, any Law or Judgment applicable to TRCH or any of its Subsidiaries or by
which TRCH or any of its Subsidiaries or any of their assets or properties is
bound or affected, (4) result in the imposition or creation of any Liens upon or
with respect to any of the assets owned or used by TRCH or its Subsidiaries, or
(5) cause the suspension or revocation of any Permit necessary for TRCH or any
of its Subsidiaries to conduct the Perkins Business as currently conducted.
5.05 CONSENTS AND APPROVALS. No Consent is required to be obtained by TRCH
from, and no notice or filing is required to be given by TRCH to, or made by
TRCH with, any Federal, state, local, foreign or other Governmental Authority or
other Person in connection with the execution, delivery and performance by TRCH
of this Agreement or the other Transaction Documents, other than in all cases
where the failure to obtain such Consent or to give or make such notice or
filing would not, individually or in the aggregate, reasonably be expected to be
material to the operation of the Perkins Business or adversely affect the
ability of TRCH to consummate the transactions contemplated hereby and by the
other Transaction Documents.
ARTICLE VI
COVENANTS
6.01 REASONABLE BEST EFFORTS. Subject to the terms and conditions herein
provided, each of the parties agrees to use reasonable best efforts to take, or
cause to be taken, all action, and to do, or cause to be done as promptly as
practicable, all things necessary, proper and advisable under applicable Laws to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement.
11
6.02 DIRECTOR AND OFFICER COVERAGE; FIDUCIARY COVERAGE. TRC shall cause the
persons serving as officers and directors of WRG and fiduciaries under MC Plans
immediately prior to the Closing Date to be covered for a period of six (6)
years from the Closing Date (the "COVERAGE PERIOD") by a directors' and
officers' liability insurance policy, or a fiduciary's liability insurance
policy, as applicable, with respect to acts and omissions occurring prior to the
Closing Date which were committed by such officers, directors and/or fiduciaries
in their capacity as such; PROVIDED, that such directors' and officers'
liability insurance policy and/or fiduciary's liability insurance policy
provides at least the same coverage and amounts and containing terms and
conditions which are not less advantageous to such directors, officers and/or
fiduciaries of WRG than the terms and conditions of the directors' and officers'
liability insurance policy or fiduciary's liability insurance policy, as
applicable, currently maintained by WRG. During any year of the Coverage Period,
TRCH shall not be obligated to pay an aggregate annual premium greater than 250%
of the aggregate annual premium paid or payable by WRG for the 2005 calendar
year; provided, further, that if the aggregate annual premium for such coverage
and amount of insurance during any year of the Coverage Period would exceed 250%
of such annual rate, TRCH shall arrange for the greatest amount of coverage
which shall then be available at an aggregate annual premium equal to 250% of
such rate.
6.03 OPTIONS. Any Options unexercised at Closing shall be cancelled and
shall not thereafter be exercisable. The Stock Option Plan shall terminate
effective immediately following the Closing.
6.04 WARRANTS. WRG shall take all actions necessary to cause the exercise
of the Warrants immediately prior to the Closing. Each Seller holding Warrants
immediately prior to the Closing shall take all actions necessary to effect the
cashless exercise of such Warrants immediately prior to the Closing.
6.05 FURTHER ASSURANCES. From time to time after the Closing, upon the
reasonable request of any party hereto, the other party or parties hereto shall
execute and deliver or cause to be executed and delivered such further
instruments, and take such further action, as the requesting party may
reasonably request in order to effectuate the purposes, terms and conditions
hereof.
ARTICLE VII
CONDITIONS TO CLOSING
7.01 GENERAL CONDITIONS. The obligations of each party to this Agreement to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of the following conditions:
(a) No order, statute, rule, regulation, executive order, injunction,
stay, decree or restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or governmental or regulatory
authority or instrumentality that prohibits the consummation of the transactions
contemplated by this Agreement; and
12
(b) All approvals and consents required by any applicable Laws have
been obtained and all notices under such Laws have been provided to the
requisite authorities prior to the Closing Date or within the time limits
required by the applicable statute or regulation.
7.02 CONDITIONS TO OBLIGATIONS OF SELLERS AND WRG. The obligation of
Sellers and WRG to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction or waiver by the Sellers' Representative of
each of the following conditions:
(a) TRCH shall have delivered or cause to be delivered to the Sellers'
Representative the joinders to the TRCH Operating Agreement, the TRCH
Registration Rights Agreement and the TRCH Unitholders Agreement for each Seller
duly executed by TRCH;
7.03 CONDITIONS TO OBLIGATIONS OF TRCH AND TRC. The obligation of TRCH and
TRC to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction each of the following conditions:
(a) All of the Warrants shall have been accelerated and exercisable,
and each Seller holding Warrants immediately prior to the Closing shall have
effected the cashless exercise of such Warrants immediately prior to the
Closing;
(b) WRG shall have paid, or caused to be paid, in full all Indebtedness
of WRG and its Subsidiaries listed on SCHEDULE 7.03(B), each holder of such
Indebtedness shall have fully released WRG and its Subsidiaries and all Liens on
any assets of WRG and its Subsidiaries shall have been released, and Purchaser
shall have received evidence thereof reasonably satisfactory to it; and
(c) The Sellers shall have delivered or cause to be delivered the
certificates representing the Shares.
ARTICLE VIII
GENERAL PROVISIONS
8.01 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. None of the
representations, warranties, covenants and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing,
except (a) for those covenants and agreements contained herein and therein which
by their terms apply in whole or in part after the Closing, which shall survive
in accordance with their terms and (B) SECTIONS 3.01 (Ownership of Shares), 4.02
(Capitalization) and 5.02 (Capitalization). In no event shall the amount of
losses or damages paid by a Seller for a breach of SECTION 4.02 or SECTION 3.01
(it being understood and agreed that a breach of the representations and
warranties in SECTION 3.01 shall be deemed to be a breach by the applicable
Sellers only and not the Company) exceed the amount of value attributable to the
Units received by such Seller for his, her or its Shares under this Agreement
and no Seller shall have any liability in respect of any other Seller's breach
of SECTION 3.01. The Sellers shall be responsible, severally and not jointly, in
accordance with their respective Proportionate Share, for any breach of the
representations and warranties contained in SECTION 4.02.
13
8.02 EXPENSES. Each party to this Agreement shall pay all fees and expenses
incurred by it in connection with this Agreement and the transactions
contemplated by this Agreement.
8.03 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed by TRCH, TRC and the Sellers' Representative.
8.04 ASSIGNMENT. Neither this Agreement nor any of the rights, benefits or
obligations hereunder may be assigned, in whole or in part, by either party
(whether by operation of Law or otherwise) without the prior written consent of
the other party hereto, which shall be the Sellers' Representative in case of
the Sellers. Any attempted assignment in violation of this SECTION 8.04 shall be
void.
8.05 WAIVER. Any of TRCH, TRC, the Sellers or WRG may (1) extend the time
for the performance of any of the obligations or other acts of the other, (2)
waive any inaccuracies in the representations and warranties of the other
contained in this Agreement or in any document delivered by the other pursuant
to this Agreement or (3) waive compliance with any of the agreements, or
satisfaction of any of the conditions, contained in this Agreement by any other
party. Any agreement on the part of a party to this Agreement to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by such party.
8.06 NOTICES. Any notices or other communications required or permitted
under, or otherwise in connection with, this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or upon
confirmation of receipt when transmitted by facsimile transmission or upon
receipt after dispatch by reputable courier service that guarantees Business Day
delivery or by registered or certified mail, postage prepaid, addressed as
follows:
If to any Seller to the addresses listed on their
respective joinders to the TRCH Operating Agreement.
If to the Sellers' Representative, or, after Closing, WRG to:
Xxxxxx Xxxxxx Partners III, L.P.
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
If to TRCH or TRC or, after Closing, WRG to:
c/o The Restaurant Company
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
14
TRC Holding LLC
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
or such other address as the Person to whom notice is to be given has furnished
in writing to the other party. A notice of change in address shall not be deemed
to have been given until received by the addressee.
8.07 HEADINGS AND SCHEDULES. The descriptive headings of the Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. The disclosure or inclusion of any matter
or item on any Schedule shall not be deemed an acknowledgment or admission that
any such matter or item is required to be disclosed or is material for purposes
of the representations and warranties set forth in this Agreement.
8.08 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York regardless of principles of
conflicts of laws.
8.09 NO THIRD PARTY RIGHTS. This Agreement is intended to be solely for the
benefit of the parties to this Agreement and is not intended to confer any
benefits upon, or create any rights in favor of, any Person other than the
parties to this Agreement.
8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
8.11 SEVERABILITY. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions of this Agreement shall not be affected and there shall be
deemed substituted for the provision or provisions at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
8.12 ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to in this Agreement) sets forth the entire understanding
and agreement among the parties as to the matters covered in this Agreement and
supersedes and replaces any prior understanding, agreement or statement of
intent, in each case, written or oral, of any and every nature with respect to
such understanding, agreement or statement. The parties hereto acknowledge that
each has conducted its own independent review and analysis of the business and
operations of TRCH and its Subsidiaries or WRG and its Subsidiaries, as
applicable, and that it has been provided access to the properties, records and
personnel of the applicable business for this purpose. In entering into this
Agreement, the parties hereto have relied solely upon their own investigation
and analysis and the representations and warranties set forth in this Agreement.
8.13 SELLERS' REPRESENTATIVE.
15
(a) DESIGNATION. Xxxxxx Xxxxxx Partners III, L.P. is hereby designated
by each of the Sellers to serve as the representative of such Sellers (the
"SELLERS' REPRESENTATIVE") with respect to the matters expressly set forth in
this Agreement and the other Transaction Documents to be performed on behalf of
such Sellers, or by the Sellers' Representative.
(b) AUTHORITY. Each of the Sellers hereby irrevocably the Sellers'
Representative as the agent, proxy and attorney-in-fact for such Seller for all
purposes of this Agreement and the other Transaction Documents including the
full power and authority on such Seller's behalf to take any action contemplated
in this Agreement or any other Transaction Documents, by or on behalf of such
Seller in connection herewith and to do each and every act and exercise any and
all rights which such Seller, or the Sellers collectively are permitted or
required to do or exercise under this Agreement. Each of the Sellers agrees that
such agency and proxy are coupled with an interest, are therefore irrevocable
without the consent of the Sellers' Representative and shall survive the death,
incapacity, bankruptcy, dissolution or liquidation of any Seller.
(c) AUTHORITY; INDEMNIFICATION. Each Seller agrees that TRCH and TRC
shall be entitled to rely on any action taken by the Sellers' Representative, on
behalf of the Sellers, pursuant to SECTION 8.13(B) above (each, an "AUTHORIZED
ACTION"), and that each Authorized Action shall be binding on each Seller as
fully as if such Seller had taken such Authorized Action. Each Seller hereby
severally, for itself only and not jointly, agrees to indemnify, defend and hold
harmless the Sellers' Representative against all expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Sellers' Representative in connection with any
Proceeding to which the Sellers' Representative is made a party by reason of the
fact it is or was acting as Sellers' Representative pursuant to the terms of
this Agreement, including the legal costs and expenses of defending themselves
against any claim or liability in connection with their performance under this
Agreement and any other Transaction Documents.
(d) EXCULPATION. The Sellers' Representative shall not have by reason
of this Agreement a fiduciary relationship in respect of any Seller. The
Sellers' Representative shall not be liable to any Seller for any action taken
or omitted by it or any agent employed by it hereunder or under any other
document entered into in connection herewith. The Sellers' Representative shall
not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement.
Neither the Sellers' Representative nor any agent employed by it shall incur any
liability to any Seller by virtue of the failure or refusal of the Sellers'
Representative for any reason to consummate the transactions contemplated hereby
or relating to the performance of its other duties hereunder, except for actions
or omissions constituting fraud or bad faith.
8.14 CONSENT TO JURISDICTION; JURY TRIAL; VENUE.
(a) All disputes, litigation, Proceedings or other legal actions by a
party to this Agreement in connection with or relating to this Agreement or any
matters described or contemplated in this Agreement shall be instituted in the
federal or state courts located in New York, New York and each party hereby
irrevocably submits to the personal jurisdiction and venue of such courts for
the purposes thereof. Each party hereby irrevocably consents to the
16
service of process of any of the aforementioned courts in any such suit, action,
or Proceeding by mailing a copy of such process or summons to it at its address
set forth, and in the manner provided, in SECTION 8.06, with such service deemed
effective on the fifteenth day after the date of such mailing.
(b) Each party to this Agreement irrevocably waives the right to a
trial by jury in connection with any matter relating to this Agreement or the
transactions contemplated by this Agreement and, to the fullest extent permitted
by applicable Law, any defense or objection it may now or hereafter have to the
laying of venue of any Proceeding relating to this Agreement or the transactions
contemplated by this Agreement brought in the federal or state courts located in
New York, New York and any claim that any Proceeding under this Agreement
brought in any such court has been brought in an inconvenient forum.
8.15 FAIR CONSTRUCTION. This Agreement shall be deemed to be the joint work
product of each party without regard to the identity of the draftsperson, and
any rule of construction that a document shall be interpreted or construed
against the drafting party shall not be applicable.
* * * * * * * *
17
Each of the parties to this Agreement has caused this Agreement to be executed
on its behalf by a duly authorized officer, all as of the day and year first
above written.
TRC HOLDING LLC
By:/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name:
Title:
THE RESTAURANT COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name:
Title:
WILSHIRE RESTAURANT GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SELLERS
XXXXXX XXXXXX PARTNERS III, L.P.
By: Xxxxxx Xxxxxx, Inc., its Investment
Manager
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name:
Title:
XXXXXX XXXXXX OFFSHORE PARTNERS III, L.P.
By: Xxxxxx Xxxxxx, Inc., its Investment
Manager
18
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name:
Title:
XXXXXX XXXXXX AFFILIATES III, L.P.
By: Xxxxxx Xxxxxx, Inc., its Investment
Manager
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name:
Title:
FROGMORE FORUM FAMILY FUND, L.L.C.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name:
Title:
BRANFORD CASTLE HOLDINGS, INC.
By: /s/ [Illegible]
--------------------------------------
Name:
Title:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
XXXXXXX X. XXXXXX
PRUDENTIAL SECURITIES, CUSTODIAN FOR
XXXXX X. XXXXX XXX ROLLOVER
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Shareholder
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
XXXXX X. XXXXXXX
19
XXXXXX X. AND XXXX X. XXXXXX
REVOCABLE FAMILY TRUST DATED APRIL
28, 2005
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx Xxxxxx
------------------------------------------
XXXXXXX XXXXXX
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxxx Xxxxx
------------------------------------------
XXXXXX XXXXX
XXXX X. XXXXX 1994 TRUST
BY: /s/ Xxx Xxxx
--------------------------------------
Name: Xxx Xxxx
Title: Trustee
XXXXXXX X. XXXXX 1994 TRUST
BY: /s/ Xxx Xxxx
--------------------------------------
Name: Xxx Xxxx
Title: Trustee
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx XXXXX
20
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
XXXXXXX X. XXXXXXXXX
MZ ASSOCIATES, LLC
By: /s/ [Illegible]
--------------------------------------
Name:
Title:
/s/ Xxxxxxxxx X. Xxxxx
------------------------------------------
XXXXXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
XXXXX X. XXXXXXXXX
/s/ Xxxxxxx Xxxxxx
------------------------------------------
XXXXXXX XXXXXX
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
XXXXXX X. XXXXXX
00
