THIRD AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Among
THE RESTAURANT COMPANY,
PERKINS ACQUISITION CORP.
and
XXXXXXX FAMILY RESTAURANTS, L.P.
Dated as of September 11, 1997
TABLE OF CONTENTS
ARTICLE I
THE MERGER
SECTION 1.01 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 Effective Time; Closing . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.03 Effect of the Merger . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04 Agreement of Limited Partnership . . . . . . . . . . . . . . . 2
SECTION 1.05 Conversion of Securities; Merger Consideration . . . . . . . . 2
SECTION 1.06 Surrender of Units . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.07 Restricted Limited Partnership Unit Plan . . . . . . . . . . . 4
SECTION 1.08 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.09 PROC Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PERKINS
SECTION 2.01 Organization and Qualification . . . . . . . . . . . . . . . . 5
SECTION 2.02 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03 Authority Relative to this Agreement . . . . . . . . . . . . . 6
SECTION 2.04 No Conflict; Required Filings and Consents . . . . . . . . . . 6
SECTION 2.05 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07 SEC Filings; Financial Statements . . . . . . . . . . . . . . . 7
SECTION 2.08 Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.09 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.10 Fairness Opinion . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGERCO. AND TRC
SECTION 3.01 Corporate Organization . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.02 Authority Relative to this Agreement . . . . . . . . . . . . . 8
SECTION 3.03 No Conflict; Required Filings and Consents . . . . . . . . . . 9
SECTION 3.04 Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.05 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01 Meeting of Unitholders . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.02 Proxy Statement and Schedule 13E-3 . . . . . . . . . . . . . . 10
SECTION 4.03 Further Action; Reasonable Best Efforts . . . . . . . . . . . . 10
SECTION 4.05 Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.06 Updated Fairness Opinion . . . . . . . . . . . . . . . . . . . 11
SECTION 4.07 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.08 Capital Contributions . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
CONDITIONS TO THE MERGER
SECTION 5.01 Conditions to Each Party's Obligation to Effect the Merger . . 12
SECTION 5.02 Additional Conditions to Obligations of TRC and MergerCo.
to Effect the Merger . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.03 Additional Conditions to Obligation of Perkins to effect the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.02 Effect of Termination . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.03 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.04 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.05 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 Non-Survival of Representations, Warranties and Agreements . . 15
SECTION 7.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 7.03 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 7.04 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.05 Entire Agreement; Assignment . . . . . . . . . . . . . . . . . 16
SECTION 7.06 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.07 Specific Performance . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.09 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 17
THIRD AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of
September 11, 1997 (this "AGREEMENT") among The Restaurant Company, a Delaware
corporation ("TRC"), Perkins Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Xxxxxxx Management Company, Inc. ("MERGERCO."), and
Xxxxxxx Family Restaurants, L.P., a Delaware limited partnership ("PERKINS").
WHEREAS, the Board of Directors (the "BOARD") of Xxxxxxx Management
Company, Inc. ("PMC" or in its capacity as the sole general partner of Perkins,
the "GENERAL PARTNER"), has (A) determined that this Agreement and the
transactions contemplated hereby (the "TRANSACTIONS") are fair to and in the
best interests of holders (other than TRC, its affiliates and the officers,
directors and key employees of TRC and its affiliates) of depositary units
("UNITS") representing limited partners' interests in Perkins (the "PUBLIC
UNITHOLDERS"), (B) approved and adopted this Agreement and the Transactions,
including the merger of MergerCo. with and into Perkins (the "MERGER") in
accordance with the Delaware General Corporation Law (the "DGCL") and the
Delaware Revised Uniform Limited Partnership Act ("DRULPA") and upon the terms
and subject to the conditions set forth herein, and (C) recommended that the
Public Unitholders approve and adopt this Agreement and the Transactions; and
WHEREAS, Xxxxxx Xxxxxx & Company, Inc. ("XXXXXX XXXXXX") has delivered
to the Board a written opinion that the consideration to be received by the
Public Unitholders pursuant to the Merger is fair to the Public Unitholders from
a financial point of view (the "XXXXXX XXXXXX OPINION"); and
WHEREAS, the Boards of Directors of MergerCo. and TRC have each
determined that this Agreement and the Transactions, including the Merger, are
in the best interests of the stockholders of MergerCo. and TRC; and
WHEREAS, in order to protect the interests of the Public Unitholders,
the Board has determined that the Merger and this Agreement require the
affirmative vote of the holders of a majority of the Units that are held by the
Public Unitholders (the "PUBLIC UNITS") actually voting on the Merger ("PUBLIC
UNITHOLDER APPROVAL");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, TRC, MergerCo. and the General Partner, on behalf of Perkins, hereby
agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER. Upon the terms and subject to the conditions set
forth in ARTICLE V, and in accordance with Section 263 of the DGCL and Section
17-211 of the DRULPA, at the Effective Time (as hereinafter defined) MergerCo.
shall be merged with and into Perkins. As a result of the Merger, the separate
corporate existence of MergerCo. shall cease and Perkins shall continue as the
surviving partnership after the Merger (the "SURVIVING PARTNERSHIP").
SECTION 1.02 EFFECTIVE TIME; CLOSING. As promptly as practicable after
the satisfaction or, if permissible, waiver of the conditions set forth in
ARTICLE V, the parties hereto shall cause the Merger to be consummated by filing
a certificate of merger with the Secretary of State of the State of Delaware
(the "CERTIFICATE OF MERGER"), in such form as is required by, and executed in
accordance with the relevant provisions of, the DGCL and the DRULPA (the date
and time of such filing being the "EFFECTIVE TIME"). Prior to such filing, a
closing shall be held at the offices of Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, or such other place as the parties shall
agree, for the purpose of confirming the satisfaction or waiver, as the case may
be, of the conditions set forth in ARTICLE V (the "CLOSING").
SECTION 1.03 EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and
DRULPA. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all the property, rights, privileges, powers and
franchises of MergerCo. and Perkins shall vest in the Surviving Partnership, and
all debts, liabilities, obligations, restrictions, disabilities and duties of
MergerCo. and Perkins shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Partnership.
SECTION 1.04 AGREEMENT OF LIMITED PARTNERSHIP. The Agreement of Limited
Partnership of Xxxxxxx Family Restaurants, L.P. (the "PARTNERSHIP AGREEMENT")
shall be the Agreement of Limited Partnership of the Surviving Partnership and
thereafter may be amended as provided in the Partnership Agreement or by law.
This Agreement shall effect no amendment or other change whatsoever to the
Partnership Agreement except that the Partnership Agreement shall be amended as
provided in EXHIBIT 1.04.
SECTION 1.05 CONVERSION OF SECURITIES; MERGER CONSIDERATION. At the
Effective Time, by virtue of the Merger and without any action on the part of
TRC, MergerCo. or the holders of any of the following securities:
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(a) Each Public Unit and each Unit held by any person other than TRC
or its direct or indirect subsidiaries, including any Units that are then
outstanding but subject to restriction and held by participants in the Unit
Plan (as hereinafter defined), shall be canceled and shall be converted
automatically into the right to receive an amount equal to $14 per Unit in
cash (the "MERGER CONSIDERATION") payable, without interest, to the holder
of such Unit;
(b) Each general or limited partnership interest of Perkins owned by
TRC or any direct or indirect subsidiary of TRC immediately prior to the
Effective Time shall remain a general or limited partnership interest of
the Surviving Partnership and no payment or distribution shall be made with
respect thereto;
(c) Each Unit held in the treasury of Perkins immediately prior to
the Effective Time shall be canceled and retired and no payment shall be
made with respect thereto; and
(d) Each share of Common Stock, par value $.01 per share, of
MergerCo. issued and outstanding immediately prior to the Effective Time
shall be converted into and exchanged for one Unit in the Surviving
Partnership.
SECTION 1.06 SURRENDER OF UNITS. (a) Prior to the Effective Time, TRC
shall designate a bank or trust company to act as agent (the "PAYING AGENT") for
the holders of Units to receive the funds to which they shall become entitled
pursuant to SECTION 1.05(a). Promptly after the Effective Time, the Surviving
Partnership shall cause to be mailed to each person who was, at the Effective
Time, a holder of record of Units entitled to receive the Merger Consideration
pursuant to SECTION 1.05(a) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the depositary
receipts that formerly evidenced such Units (each a "RECEIPT") shall pass, only
upon proper delivery of the Receipts to the Paying Agent) and instructions for
use in effecting the surrender of the Receipts pursuant to such letter of
transmittal. Upon surrender to the Paying Agent of a Receipt, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, and such other documents as may be required
pursuant to such instructions, the holder of such Receipt shall be entitled to
receive in exchange therefor the Merger Consideration for each Unit formerly
evidenced by such Receipt, and such Receipt shall then be canceled. No interest
shall accrue or be paid on the Merger Consideration payable upon the surrender
of any Receipt for the benefit of the holder of such Receipt. If payment of the
Merger Consideration is to be made to a person other than the person in whose
name the surrendered Receipt is registered on the books of the depositary, it
shall be a condition of payment that the Receipt so surrendered shall be
endorsed properly or otherwise be in proper form for transfer and that the
person requesting such payment shall have paid all transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered holder of the Receipt surrendered or shall have established
to the satisfaction of the Surviving Partnership that such taxes either have
been paid or are not applicable.
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(b) When and as needed, TRC, MergerCo. or Perkins shall deposit, or
cause to be deposited, in trust with the Paying Agent the Merger Consideration
to which the holders of Units shall be entitled at the Effective Time pursuant
to SECTION 1.05(a) hereof.
(c) The Merger Consideration shall be invested by the Paying Agent;
PROVIDED, that such investments shall be limited to direct obligations of the
United States of America, obligations for which the full faith and credit of the
United States of America is pledged to provide for the payment of principal and
interest, commercial paper rated of the highest quality by Xxxxx'x Investors
Services, Inc. or Standard & Poor's, or certificates of deposit issued by a
commercial bank having at least $1,000,000,000 in assets; and PROVIDED, FURTHER,
that no loss on investment made pursuant to this SECTION 1.06(c) shall relieve
TRC or MergerCo. of its obligation to pay the Merger Consideration pursuant to
SECTION 1.05(a).
(d) At any time following the sixth month after the Effective Time,
the Surviving Partnership shall be entitled to require the Paying Agent to
deliver to it any funds which had been made available to the Paying Agent and
not disbursed to holders of Units (including, without limitation, all interest
and other income received by the Paying Agent in respect of all funds made
available to it), and thereafter such holders shall be entitled to look to the
Surviving Partnership (subject to abandoned property, escheat and other similar
laws) only as general creditors thereof with respect to any Merger Consideration
that may be payable upon due surrender of the Receipts held by them.
Notwithstanding the foregoing, neither the Surviving Partnership nor the Paying
Agent shall be liable to any holder of a Unit for any Merger Consideration
delivered in respect of such Unit to a public official pursuant to any abandoned
property, escheat or other similar law.
(e) After the close of business on the day of the Effective Time,
there shall be no further registration of transfers of Units on the records of
the depositary for the Units. From and after the Effective Time, the holders of
Units outstanding immediately prior to the Effective Time shall cease to have
any rights with respect to such Units except as otherwise provided herein or by
applicable law.
SECTION 1.07 RESTRICTED LIMITED PARTNERSHIP UNIT PLAN. After the date of
this Agreement, Perkins shall not issue any Units pursuant to its Restricted
Limited Partnership Unit Plan of October 22, 1987 (the "UNIT PLAN") and shall
terminate the Unit Plan, effective as of the Effective Date.
SECTION 1.08 REDEMPTION. Immediately after the Effective Time, the
Surviving Partnership shall redeem, for $14 per Unit, all Units received by PMC
in connection with the conversion of MergerCo.'s common stock in the Merger.
SECTION 1.09 PROC MERGER. Prior to the Effective Time, Xxxxxxx will, and
TRC will cause PMC to, cause Xxxxxxx Restaurants Operating Company, L.P.
("PROC") to be merged with and into Perkins with Perkins being the surviving
partnership in such merger, on such terms as Perkins, TRC and PMC may determine.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PERKINS
Perkins hereby represents and warrants to MergerCo. and TRC that:
SECTION 2.01 ORGANIZATION AND QUALIFICATION. Perkins and each partnership
controlling, controlled by or under common control with Perkins (an "AFFILIATED
PARTNERSHIP"), including, without limitation, PROC, is a partnership duly
organized, validly existing and in good standing under Delaware law and has the
requisite power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals would not,
individually or in the aggregate, have a Material Adverse Effect (as defined
below). Each of Perkins and its Affiliated Partnerships is duly qualified to do
business, is in good standing and has obtained all necessary licenses and
approvals in all jurisdictions where the character of the properties owned,
leased or operated by it or the nature of its business makes such qualification
or licensing necessary, except for such failures to be so qualified or licensed
and in good standing that would not, individually or in the aggregate, have a
Material Adverse Effect. When used in connection with Perkins or any Affiliated
Partnership, the term "MATERIAL ADVERSE EFFECT" means any change or effect that
is or is reasonably likely to be materially adverse to the business, operations,
properties, condition (financial or otherwise), assets or liabilities
(including, without limitation, contingent liabilities), results of operations
or prospects of Perkins and its Affiliated Partnerships taken as a whole. A
true and complete list of all Affiliated Partnerships, together with the
jurisdiction of organization of each Affiliated Partnership and the percentage
of ownership in each Affiliated Partnership owned by Perkins, is set forth in
SECTION 2.01 of the Disclosure Schedule to this Agreement previously delivered
by Perkins to TRC (the "DISCLOSURE SCHEDULE"). Except as disclosed in such
SECTION 2.01, Perkins does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable
for, any equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity.
SECTION 2.02 CAPITALIZATION. As of the date hereof, (i) 10,487,495 Units
are issued and outstanding, (ii) 5,043,000 Units are held by Xxxxxxx
Restaurants, Inc., a wholly owned subsidiary of TRC, (iii) 5,268,410 Units are
held by the Public Unitholders and (iv) 176,085 Units are held by employees of
TRC and its affiliates. Perkins owns a 99% limited partner's interest in PROC,
the entity through which the operations of Perkins are conducted. PMC, a wholly
owned subsidiary of Xxxxxxx Restaurants, Inc., a wholly owned subsidiary of TRC,
is the sole general partner of Perkins and PROC. PMC owns a 1% general
partner's interest in each partnership. Except as set forth in SECTION 4.08,
there are no options, warrants or rights, agreements, arrangements or
commitments of any character relating to the issued or unissued Units of Perkins
or any Affiliated Partnership or obligating Perkins or any Affiliated
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Partnership to issue or sell any Units, or other partnership interests in,
Perkins or any Affiliated Partnership. Except as set forth in SECTION 1.08,
there are no outstanding contractual obligations of Perkins or any Affiliated
Partnership to repurchase, redeem or otherwise acquire any Units or any
partnership interests of any Affiliated Partnership.
SECTION 2.03 AUTHORITY RELATIVE TO THIS AGREEMENT. The General Partner
has all necessary partnership power and authority to execute and deliver this
Agreement on behalf of Perkins. The execution and delivery of this Agreement
by the General Partner, on behalf of Perkins, and the consummation by Perkins
and the General Partner of the Transactions have been duly and validly
authorized by all necessary partnership action and no other partnership
proceedings on the part of Perkins or the General Partner are necessary to
authorize this Agreement or to consummate the Transactions (other than, with
respect to the Merger, (i) the approval and adoption of this Agreement by a
Majority Interest (as defined in the Partnership Agreement), (ii) Public
Unitholder Approval as required by the terms of this Agreement, and (iii) the
filing and recordation of appropriate merger documents as required by the DGCL
and DRULPA). This Agreement has been duly and validly executed and delivered by
the General Partner, on behalf of Perkins, and, assuming the due authorization,
execution and delivery by MergerCo. and TRC, constitutes a legal, valid and
binding obligation of Perkins, enforceable against Perkins in accordance with
its terms.
SECTION 2.04 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by the General Partner, on behalf of
Perkins, do not, and the performance of this Agreement by Xxxxxxx will not, (i)
conflict with or violate the organizational documents of Perkins or any
Affiliated Partnership, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Perkins or any Affiliated Partnership or
by which any property or asset of Perkins or any Affiliated Partnership is bound
or affected, or (iii) result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of Perkins or any Affiliated Partnership pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Perkins or any Affiliated
Partnership is a party or by which Perkins or any Affiliated Partnership or any
of their respective properties is bound or affected except, in the case of this
clause (iii), for breaches, defaults, rights, liens and encumbrances which would
not individually or in the aggregate have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by the General
Partner, on behalf of Perkins, do not, and the performance of this Agreement by
Xxxxxxx will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Securities and Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"),
state securities or "blue sky" laws ("BLUE SKY LAWS") and state takeover laws,
and filing and recordation of appropriate merger documents as required by the
DGCL and the DRULPA and
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(ii) where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
consummation of the Merger, or otherwise prevent Perkins from performing its
obligations under this Agreement, and would not, individually or in the
aggregate, have a Material Adverse Effect.
SECTION 2.05 COMPLIANCE. Neither Perkins nor any Affiliated Partnership
is in conflict with, or in default or violation of, (i) any law, rule,
regulation, order, judgment or decree applicable to Perkins or any Affiliated
Partnership or by which any property or asset of Perkins or any Affiliated
Partnership is bound or affected, or (ii) any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Perkins or any Affiliated Partnership is a party or by which
Perkins or any Affiliated Partnership or any property or asset of Perkins or any
Affiliated Partnership is bound or affected, except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have a
Material Adverse Effect.
SECTION 2.06 LITIGATION. Except as set forth in the SEC Filings (as
hereinafter defined) or SECTION 2.06 of the Disclosure Schedule, there are no
actions, suits, claims, investigations or proceedings pending or threatened
against, relating to, involving or otherwise affecting Perkins or any Affiliated
Partnership or any of their respective properties or assets before any court,
governmental agency, commission, or administrative or regulatory authority
which, if adversely decided, in the aggregate, would have a Material Adverse
Effect or would affect the consummation of the Transactions.
SECTION 2.07 SEC FILINGS; FINANCIAL STATEMENTS. As of their respective
dates, none of the reports, statements and registration statements filed by
Perkins with the SEC since January 1, 1994 (including, without limitation,
Perkins' (i) Annual Report on Form 10-K for the year ended December 31, 1996,
and (ii) Quarterly Reports on Form 10-Q for the three months ended March 31,
1997 and the six months ended June 30, 1997 (the "SEC FILINGS") contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of Perkins included in the SEC Filings
present fairly the financial position and the results of operations and cash
flows of Perkins as of the dates or for the periods indicated therein in
conformity with generally accepted accounting principles applied on a consistent
basis (except as otherwise indicated in such financial statements or the notes
thereto), subject, in the case of unaudited interim consolidated financial
statements, to normal recurring year-end adjustments.
SECTION 2.08 PROXY STATEMENT. The proxy statement to be sent to the
holders of Units (such proxy statement, as amended or supplemented, being
referred to herein as the "PROXY STATEMENT"), shall not, at the date the Proxy
Statement (or any amendment or supplement thereto) is first mailed to the
holders of Units, at the time of the Unitholders' Meeting (as hereinafter
defined) and at the Effective Time, be false or misleading with respect to any
material fact, or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they
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are made, not misleading or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the
Unitholders' Meeting which shall have become false or misleading. The Proxy
Statement shall comply in all material respects as to form with the
requirements of the Exchange Act and the rules and regulations thereunder.
SECTION 2.09 BROKERS. No broker, finder or investment banker (other than
Xxxxxx Xxxxxx) is entitled to any brokerage, finder's or other fee or commission
in connection with the Transactions based upon arrangements made by or on behalf
of Perkins. Perkins has heretofore furnished to TRC a complete and correct copy
of all agreements between Perkins and Xxxxxx Xxxxxx pursuant to which such firm
would be entitled to any payment relating to the Transactions.
SECTION 2.10 FAIRNESS OPINION. The Board has received from Xxxxxx
Xxxxxx the Xxxxxx Xxxxxx Opinion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGERCO. AND TRC
MergerCo. and TRC hereby, jointly and severally, represent and warrant
to Perkins that:
SECTION 3.01 CORPORATE ORGANIZATION. Each of MergerCo. and TRC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted, except where the failure to
be so organized, existing or in good standing or to have such power, authority
and governmental approvals would not, individually or in the aggregate, have a
TRC Material Adverse Effect (as defined below). When used in connection with
MergerCo. or TRC, the term "TRC MATERIAL ADVERSE EFFECT" means any change or
effect that is reasonably likely to be materially adverse to the business,
operations, properties, condition (financial or otherwise), assets or
liabilities (including, without limitation, contingent liabilities), results of
operations or prospects of MergerCo. or TRC and their respective subsidiaries
taken as a whole.
SECTION 3.02 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of MergerCo. and
TRC has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
Transactions. The execution and delivery of this Agreement by MergerCo. and TRC
and the consummation by MergerCo. and TRC of the Transactions have been duly and
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of MergerCo. or TRC are necessary to authorize this
Agreement or to consummate the Transactions (other than, with respect to the
Merger, the filing and recordation of appropriate merger documents as required
by the DGCL and DRULPA). This Agreement has been duly and validly executed and
delivered by MergerCo.
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and TRC and, assuming the due authorization, execution and delivery by
Perkins, constitutes a legal, valid and binding obligation of each of
MergerCo. and TRC enforceable against each of MergerCo. and TRC in accordance
with its terms.
SECTION 3.03 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by MergerCo. and TRC do not, and the
performance of this Agreement by MergerCo. and TRC will not, (i) conflict with
or violate the articles of incorporation or by-laws or similar organizational
documents of either MergerCo. or TRC, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to MergerCo. or TRC or by
which any property or asset of either of them is bound or affected, or (iii)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or other encumbrance on any property or asset of
MergerCo. or TRC pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which MergerCo. or TRC is a party or by which MergerCo. or TRC or any
property or asset of either of them is bound or affected, except for any such
breaches, defaults or other occurrences which would not, individually or in the
aggregate, have a TRC Material Adverse Effect.
(b) The execution and delivery of this Agreement by MergerCo. and TRC
do not, and the performance of this Agreement by MergerCo. and TRC will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Exchange Act, the HSR
Act, Blue Sky Laws and state takeover laws and filing and recordation of
appropriate merger documents as required by the DGCL and the DRULPA and (ii)
where failure to obtain such consents, approvals, authorizations or permits, or
to make such filings or notifications, would not prevent or delay consummation
of the Merger, or otherwise prevent MergerCo. or TRC from performing their
respective obligations under this Agreement.
SECTION 3.04 PROXY STATEMENT. The information supplied by TRC for
inclusion in the Proxy Statement will not, on the date the Proxy Statement (or
any amendment or supplement thereto) is first mailed to the holders of Units, at
the time of the Unitholders' meeting and at the Effective Time, contain any
statement which, at such time and in light of the circumstances under which it
is made, is false or misleading with respect to any material fact, or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein not false or misleading or necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies in connection with the Unitholders' Meeting which shall have become
false or misleading. Notwithstanding the foregoing, MergerCo. and TRC make no
representation or warranty with respect to any information supplied by Perkins
or any of its representatives which is contained in any of the foregoing
documents.
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SECTION 3.05 BROKERS. No broker, finder or investment banker (other than
Xxxxx Xxxxxx, Inc.) is entitled to any brokerage, finder's or other fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of MergerCo. or TRC.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01 MEETING OF UNITHOLDERS. (a) The General Partner shall, in
accordance with applicable law and the Partnership Agreement, (i) duly call,
give notice of, convene and hold a meeting of the holders of Units as soon as
practicable following the date hereof for the purpose of considering and taking
action on this Agreement and the Transactions (the "UNITHOLDERS' MEETING") and
(ii) subject to its fiduciary duties under applicable law, (A) include in the
Proxy Statement the recommendation of the General Partner that the Public
Unitholders approve and adopt this Agreement and the Transactions and (B) use
its reasonable best efforts to obtain such approval and adoption. At the
Unitholders' Meeting, TRC shall, if Public Unitholder Approval is obtained,
cause all Units and general partners' interests then owned by it and its direct
and indirect wholly owned subsidiaries to be voted in favor of the approval and
adoption of this Agreement and the Transactions.
SECTION 4.02 PROXY STATEMENT AND SCHEDULE 13E-3. (a) Perkins shall file
the Proxy Statement with the SEC under the Exchange Act, and shall use its
reasonable best efforts to have the Proxy Statement cleared by the SEC. TRC and
Perkins shall cooperate with each other in the preparation of the Proxy
Statement, and each of Perkins, TRC and MergerCo. agrees to use its reasonable
best efforts, after consultation with the other parties hereto, to respond
promptly to all comments of and requests by the SEC and to cause the Proxy
Statement and all required amendments and supplements thereto to be mailed to
the holders of Units at the earliest practicable time.
(b) TRC and Perkins shall together prepare and file with the SEC a
Transaction Statement on Schedule 13E-3 (the "SCHEDULE 13E-3") under the
Exchange Act at the time of filings made in connection with the Proxy Statement,
and shall file with the SEC appropriate amendments to the Schedule 13E-3. The
Schedule 13E-3 will comply as to form in all material respects with the Exchange
Act and the rules and regulations promulgated thereunder.
SECTION 4.03 FURTHER ACTION; REASONABLE BEST EFFORTS. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
Transactions, including, without limitation, making and facilitating a prompt
filing under the HSR Act and using its reasonable best efforts to obtain all
licenses, permits, consents,
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approvals, authorizations, qualifications and orders of governmental
authorities and parties to contracts with Perkins and its Affiliated
Partnerships as are necessary for the consummation of the Transactions and to
fulfill the conditions to the Merger. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of each party
to this Agreement shall use their reasonable best efforts to take all such
action.
SECTION 4.04 PUBLIC ANNOUNCEMENTS. TRC and Perkins shall consult with
each other before issuing any press release or otherwise making any public
statements with respect to this Agreement or any Transaction and shall not issue
any such press release or make any such public statement prior to such
consultation, except as may be required by law.
SECTION 4.05 FINANCING. TRC shall use its reasonable best efforts to
obtain financing for aggregate funds sufficient to satisfy the obligations of
TRC, PMC, Perkins and MergerCo. hereunder, including, without limitation, the
obligation to pay the Merger Consideration pursuant to SECTION 1.05(a) and to
pay all related fees and expenses payable by TRC, PMC, Perkins and MergerCo. in
connection with the Merger and the other Transactions (the "FINANCING").
Perkins shall use its reasonable best efforts to facilitate the Financing and at
the Closing shall be the borrower thereunder at TRC's request.
SECTION 4.06 UPDATED FAIRNESS OPINION. The Parties shall use their
reasonable best efforts to obtain from Xxxxxx Xxxxxx a written fairness opinion,
dated as of the date of the Proxy Statement, and otherwise substantially the
same as the Xxxxxx Xxxxxx Opinion (the "UPDATED XXXXXX XXXXXX OPINION").
SECTION 4.07 DISTRIBUTIONS. Perkins shall make a final cash distribution
of $0.325 per Unit to Unitholders of record, as of September 30, 1997, for the
third quarter of Perkins' fiscal year, payable on or before November 20, 1997,
and between the date of such distribution and the Effective Time shall cease
making distributions.
SECTION 4.08 CAPITAL CONTRIBUTIONS. In order to prevent a "termination"
of the partnership for federal income tax purposes, TRC or one of its affiliates
agrees to contribute cash to Perkins in the amount of $4.410 million to acquire
newly issued Units of Perkins prior to the Effective Time and shall be entitled
to contribute any amount necessary to pay any costs incurred by Perkins or the
Affiliated Partnerships in connection with the repayment of their existing
indebtedness or any other transaction connected with the Merger; PROVIDED,
HOWEVER, that if the Merger is for any reason not consummated, such capital
contribution may be withdrawn and shall be repaid by Perkins promptly upon
notice from TRC or such affiliate. Any expense paid by TRC or its affiliates
pursuant to this SECTION 4.08 shall be specially allocated to the party paying
such expense in order to satisfy the "substantial economic effect" requirement
of Section 704(b) of the Internal Revenue Code of 1986, as amended.
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ARTICLE V
CONDITIONS TO THE MERGER
SECTION 5.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) This Agreement and the Transactions, including the Merger, shall
have been approved and adopted by a Majority Interest (as defined in the
Partnership Agreement) and by the affirmative vote of a majority of the
Public Units actually voting on the Merger;
(b) No governmental authority or other agency or commission or court
of competent jurisdiction shall have enacted, issued, promulgated, enforced
or entered any law, rule, regulation, executive order, decree, injunction
or other order (whether temporary, preliminary or permanent) which is then
in effect and has the effect of making the acquisition of Units by
MergerCo. or TRC or any affiliate of either of them illegal or otherwise
restricting, preventing or prohibiting consummation of the Transactions;
(c) Any waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated; and
(d) Xxxxxx Xxxxxx shall have provided and not withdrawn the Updated
Xxxxxx Xxxxxx Opinion.
SECTION 5.02 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TRC AND MERGERCO. TO
EFFECT THE MERGER. The obligations of TRC and MergerCo. to effect the Merger
are further subject to the satisfaction or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Perkins contained in this Agreement shall be true and correct
in all material respects when made and on and as of the Effective Time,
except for changes contemplated by this Agreement, with the same force and
effect as if made on and as of the Effective Time, except for any
representation or warranty made or given as of a specified time, which
shall have been true and correct in all material respects as of such time;
(b) AGREEMENTS AND COVENANTS. Perkins shall have performed or
complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by it on or
prior to the Effective Time;
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(c) NO MATERIAL ADVERSE EFFECT. Since the date of this Agreement, no
event shall have occurred or shall be reasonably expected to occur which
has, or is reasonably expected to have, a Material Adverse Effect;
(d) LITIGATION, ETC. There shall be no pending or threatened actions
or proceedings by any person against Perkins or its Affiliated
Partnerships, TRC, the General Partner, MergerCo., or any of their
subsidiaries or any director, officer or employee thereof challenging or in
any way or in any manner seeking to restrict or prohibit the Merger or any
other Transaction or seeking to obtain any damages against any person as a
result of the Merger or any other Transaction; and
(e) FINANCING. The Financing shall be available on terms
satisfactory to TRC.
SECTION 5.03 ADDITIONAL CONDITIONS TO OBLIGATION OF PERKINS TO EFFECT THE
MERGER. The obligation of Perkins to effect the Merger is further subject to
the satisfaction or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of TRC and MergerCo. contained in this Agreement shall be true
and correct in all material respects when made and on and as of the
Effective Time, except for changes contemplated by this Agreement, with the
same force and effect as if made on and as of the Effective Time, except
for any representation or warranty made or given as of a specified time,
which shall have been true and correct in all material respects as of such
time; and
(b) AGREEMENTS AND COVENANTS. TRC and MergerCo. shall have performed
or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by them on or
prior to the Effective Time.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01 TERMINATION. This Agreement may be terminated and the Merger
and the other Transactions may be abandoned at any time prior to the Effective
Time, notwithstanding any requisite approval and adoption of this Agreement and
the Transactions by the Public Unitholders:
(a) By mutual written consent duly authorized by the Boards of
Directors of MergerCo., TRC and the General Partner; or
(b) By either TRC or Perkins if (i) the Effective Time shall not have
occurred on or before February 28, 1998; PROVIDED, HOWEVER, that the right
to terminate this
13
Agreement under this SECTION 6.01(b) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Effective Time to occur on or
before such date or (ii) any court of competent jurisdiction or other
governmental authority shall have issued an order, decree or ruling or
taken any action restraining, enjoining or otherwise prohibiting the
Merger and such order, decree, ruling or other action shall have become
final and nonappealable; or
(c) By Perkins if the Board shall have determined that it has a
fiduciary duty to withdraw its approval or recommendation of this
Agreement, the Merger or any other Transaction.
(d) By TRC if the Board shall have withdrawn or modified in a manner
adverse to TRC its approval or recommendation of this Agreement or the
Merger.
SECTION 6.02 EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to SECTION 6.01, this Agreement shall forthwith become
void, and there shall be no liability on the part of any party hereto except as
set forth in SECTIONS 6.03 and 7.01; PROVIDED, HOWEVER, that neither anything
herein nor the termination of this Agreement shall relieve any party from
liability for any breach hereof.
SECTION 6.03 FEES AND EXPENSES. All fees, costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the party
bearing such cost.
SECTION 6.04 AMENDMENT. This Agreement may be amended by the parties
hereto by action taken by or on behalf of the Boards of Directors of TRC,
MergerCo. and the General Partner at any time prior to the Effective Time;
PROVIDED, HOWEVER, that after the approval and adoption of this Agreement and
the Transactions by the Public Unitholders, no amendment may be made which would
reduce the amount or change the type of consideration to which each Public
Unitholder shall be entitled upon consummation of the Merger. This Agreement
may not be amended except by an instrument in writing signed by the parties
hereto.
SECTION 6.05 WAIVER. At any time prior to the Effective Time, any party
hereto may (i) extend the time for the performance of any obligation or other
act of any other party hereto, (ii) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement or condition contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
The representations, warranties and agreements in this Agreement shall terminate
at the Effective Time or upon the termination of this Agreement pursuant to
SECTION 6.01, as the case may be, except that the agreements set forth in
ARTICLE I and SECTION 4.08 shall survive the Effective Time indefinitely and
those set forth in SECTION 6.02 and SECTION 6.03 shall survive termination
indefinitely.
SECTION 7.02 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this SECTION 7.02):
if to TRC or MergerCo.:
Xxxxxxx X. Xxxxxxx
The Restaurant Company
Xxx Xxxxxx Xxxxx
Xxxxx 000X
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
if to Perkins:
Xxxxxx X. XxXxxxxxx
Xxxxxxx Family Restaurants, L.P.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
SECTION 7.03 CERTAIN DEFINITIONS. For purposes of this Agreement, the
term:
(a) "AFFILIATE" of a specified person means a person who directly
or indirectly through one or more intermediaries controls, is controlled by,
or is under common control with, such specified person;
(b) "BENEFICIAL OWNER" with respect to any Units means a person who
shall be deemed to be the beneficial owner of such Units (i) which such person
or any of its affiliates or associates (as such term is defined in Rule 12b-2
promulgated under the
15
Exchange Act) beneficially owns, directly or indirectly, (ii) which such
person or any of its affiliates or associates has, directly or indirectly,
(A) the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of consideration rights,
exchange rights, warrants or options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or understanding or (iii) which are
beneficially owned, directly or indirectly, by any other persons with whom such
person or any of its affiliates or associates or person with whom such person or
any of its affiliates or associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
Units;
(c) "BUSINESS DAY" means any day on which the principal offices of
the SEC in Washington D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized to close in the City of New York;
(d) "CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, as
trustee or executor, by contract or credit arrangement or otherwise;
(e) "PERSON" means an individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person"
as defined in Section 13(d)(3) of the Exchange Act), trust, association or
entity or government, political subdivision, agency or instrumentality of a
government; and
(f) "SUBSIDIARY" or "SUBSIDIARIES" of Perkins, MergerCo., TRC, the
Surviving Partnership or any other person means an affiliate controlled by
such person, directly or indirectly, through one or more intermediaries.
SECTION 7.04 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 7.05 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them,
16
with respect to the subject matter hereof. This Agreement shall not be
assigned by operation of law or otherwise, except that TRC and MergerCo. may
assign all or any of their rights and obligations hereunder to any affiliate
of TRC provided that no such assignment shall relieve the assigning party of
its obligations hereunder if such assignee does not perform such obligations.
SECTION 7.06 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, other than Article I (which, solely from and after the
Effective Time, is intended to be for the benefit of the Public Unitholders).
SECTION 7.07 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 7.08 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 7.09 HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, TRC, MergerCo. and Perkins have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
THE RESTAURANT COMPANY
By:______________________________________
Title:
PERKINS ACQUISITION CORP.
By:______________________________________
Title:
XXXXXXX FAMILY RESTAURANTS, L.P.
By: XXXXXXX MANAGEMENT COMPANY,
its General Partner
By:______________________________________
Title:
