EXHIBIT 10.8
▇▇▇▇▇'▇ RESTAURANTS, INC.
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 1 ("Amendment") to the Amended and Restated Investors'
Rights Agreement (the "Agreement"), dated November 19, 1997, is made as of this
31st day of December, 1997 by and among ▇▇▇▇▇'▇ RESTAURANTS, INC., a Delaware
corporation (the "Company"), the investors listed on SCHEDULE A of the Agreement
(the "Existing Investors") and the investor listed on EXHIBIT A attached hereto,
(the "New Investor"). Capitalized terms used herein which are not defined
herein shall have the definition ascribed to them in the Agreement.
RECITALS
The Company desires to sell and issue to the New Investor a warrant to
purchase shares of the Company's Series D Preferred Stock.
The Existing Investors desire for the New Investor to invest in the
Company and, as a condition thereof and to induce such investment, the Existing
Investors and the Company are willing to enter into this Amendment to permit the
New Investor to become a party to the Agreement, as amended.
In consideration of the foregoing and the promises and covenants contained
herein and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. ADDITIONAL PARTIES TO THE AGREEMENT.
The New Investor hereby enters into and becomes a party to the
Agreement. SCHEDULE A to the Agreement is amended to include the New Investor.
2. EFFECT OF AMENDMENT.
Except as amended and set forth above, the Agreement shall continue in full
force and effect.
3. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each which
will be deemed an original, and all of which together shall constitute one
instrument.
4. SEVERABILITY.
If one or more provisions of this Amendment are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
5. ENTIRE AGREEMENT.
This Amendment, together with the Agreement, constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
6. GOVERNING LAW.
This Amendment shall be governed by and construed under the laws of
the State of California as applied to agreements among California residents
entered into and to be performed entirely within California.
[Remainder of This Page Intentionally Left Blank]
-2-
This Amendment is hereby executed as of the date first above written.
▇▇▇▇▇'▇ RESTAURANTS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXISTING INVESTORS:
ROSEWOOD CAPITAL, L.P.
By: Rosewood Capital Associates, L.P.,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Principal
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇
FARRALON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, CO-TRUSTEES OF THE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: ___________________
▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇ AS
TRUSTEES OF THE ▇▇▇▇▇ ▇▇▇▇▇ AND
▇▇▇▇▇ ▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Trustee
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: ___________________
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
NEW INVESTOR:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, LLC
By: /s/ illegible
-------------------------------
Title: Senior Managing Director
-------------------------------
Address: NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities,
LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: ___________________
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
EXHIBIT A
NEW INVESTOR
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, LLC
A-1
