FOURTH AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made and entered into as of January 12,
1996, by and among La Salsa Holding Co., a Delaware corporation (the "Company"),
Howdy S. Kabrins ("Kabrins" or the "Founder"), La Salsa, Inc., a California
corporation ("La Salsa"), InterWest Partners IV, a California limited
partnership ("InterWest"), Sienna Holdings, Inc., a California corporation, as
Nominee ("Nominee"), Sienna Limited Partnership I, a California limited
partnership ("Sienna") and the other persons and entities listed on Schedule 1
hereto (Kabrins, La Salsa, InterWest, Nominee, Sienna and such persons and
entities are collectively referred to as the "Stockholders" or individually each
may be referred to as a "Stockholder") for the purpose of amending and restating
in its entirety the Third Amended Agreement (as defined below).
WHEREAS, the parties believe that it is in the best interest
of the Company and the Stockholders to provide for certain limitations on the
future disposition of the shares of capital stock of the Company held by the
Stockholders;
WHEREAS, in connection with the transactions contemplated
under that certain Asset and Stock Purchase and Reorganization Agreement (the
"Asset Purchase Agreement"), dated as of February 19, 1992, by and among
Kabrins, the Company, La Salsa and the other parties named therein, the parties
desired to restrict the sale, transfer, pledge, assignment, or encumbrance of
the shares of capital stock of the Company owned by the Stockholders pursuant to
a Restricted Stock Agreement dated as of March 4, 1992 (the "Original
Agreement");
WHEREAS, as of August 26, 1992, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") became parties to the Original Agreement;
WHEREAS, the parties amended and restated the Original
Agreement in connection with the Series B Convertible Preferred Stock financing
of the Company pursuant to an Amended and Restated Restricted Stock Agreement
dated as of May 12, 1993 (the "Amended Agreement");
WHEREAS, the parties amended the Amended Agreement in
connection with the termination of Kabrins' employment with the Company and the
grant of certain franchise rights related to the Company's restaurants pursuant
to the First Amendment to Amended and Restated Restricted Stock Agreement dated
as of March 18, 1994;
WHEREAS, the parties amended and restated the Amended
Agreement in connection with the Series D Convertible Preferred Stock financing
of the Company pursuant to a Second Amended and Restated Restricted Stock
Agreement dated as of March 3, 1995 (the "Second Amended Agreement");
WHEREAS, the parties amended the Second Amended Agreement in
connection with the transfer of certain shares by Kabrins pursuant to the
Amendment No. 1 to Second Amended and Restated Restricted Stock Agreement dated
as of October 12, 1995 (the "Amendment").
WHEREAS, the parties amended and restated the Second Amended
Agreement, as amended by the Amendment, in connection with the issuance of the
Company's Class B Common Stock and the transfer of certain shares by Kabrins
pursuant to a Third Amended and Restated Restricted Stock Agreement dated as of
November 14, 1995 (the "Third Amended Agreement");
WHEREAS, the parties hereto now desire to amend and restate
the Third Amended Agreement, in connection with the sale and issuance of
4,166,667 shares of the Company's Series D Convertible Preferred Stock and a
warrant (the "CDV Warrant") to purchase an additional 4,729,470 shares of the
Company's Series D Convertible Preferred Stock to Casual Dining Ventures, Inc.
("CDV"), to restrict the sale, transfer, pledge, assignment or encumbrance of
the shares of capital stock of the Company or any securities convertible into
Common Stock of the Company currently owned or subsequently acquired by the
Stockholders (the "Shares") by executing this Agreement;
WHEREAS, the Third Amended Agreement may be amended with the
written consent of (i) the holders of at least two-thirds (2/3) of the Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C
Convertible Preferred Stock and Series D Convertible Preferred Stock, voting
together as a single class and (ii) the holders of at least two-thirds (2/3) of
the outstanding shares of Series D Convertible Preferred Stock; and
WHEREAS, the holders of at least two-thirds (2/3) of the
Series A Convertible Preferred Stock, Series B Convertible Preferred Stock,
Series C Convertible Preferred Stock and Series D Convertible Preferred Stock,
voting together as a single class and the holders of at least two-thirds (2/3)
of the outstanding shares of Series D Convertible Preferred Stock are parties
hereto.
NOW, THEREFORE, in consideration of the mutual covenants and
promises set forth herein, the parties hereto agree as follows:
1. Right of First Refusal on Stockholder Transfers. Before any Shares registered
in the name of a Stockholder may be sold or transferred to a third party (a
"Proposed Transferee"), including a transfer by operation of law or other
involuntary transfer, such Shares shall first be offered to the Company, then to
the other Stockholders, in the following manner:
(a) Company Right of First Refusal.
(i) The Shares shall first be offered to the Company. The Stockholder proposing
to sell or transfer Shares (the "Selling Stockholder") shall deliver or
mail by certified mail a written notice (the "Notice") to the Company and
the other Stockholders (the "Non-Selling Stockholders") stating (i) such
Selling Stockholder's bona fide intention to sell or transfer Shares, (ii)
the number of Shares to be sold or transferred (which amount of Shares
shall be referred to herein as "Offered Securities") and (iii) the price
for which such Selling Stockholder proposes to sell or transfer such
Offered Securities.
(ii) The Company shall have the right, at any time within fifteen (15) days of
receipt of the Notice, to purchase all, but not less than all, of the
Offered Securities, at the price per share specified in the Notice. Such
right shall be exercised by written notice signed by an officer of the
Company and delivered or mailed as provided in Section 11(c) hereof, which
notice shall specify the time, place and date for settlement of such
purchase.
(b) Non-Selling Stockholder Right of First Refusal.
(i) If the Company elects not to exercise its right pursuant to Section 1(a)
hereof with respect to all of the Offered Securities, or if such right is
not exercised within fifteen (15) days of receipt of the Notice by the
Company, the Selling Stockholder shall notify the Non-Selling Stockholders
of such fact within five (5) days after the expiration of such fifteen (15)
day period.
(ii) Each Non-Selling Stockholder will have an option, for fifteen (15) days
after receiving the notice specified in Section 1(b)(i) hereof, to give
written notice to the Company and the Selling Stockholder of such
Non-Selling Stockholder's election to purchase its pro rata portion of all,
but not less than all, of the Offered Securities, which shall be equal to
the product of (i) the amount of Offered Securities multiplied by (ii) a
fraction, the numerator of which shall be the number of shares of Common
Stock of the Company held by such Non-Selling Stockholder (on an
as-converted basis), and the denominator of which shall be the aggregate
number of shares of Common Stock owned by the Non-Selling Stockholders as a
group (on an as-converted basis). The purchase price at which the Shares
are offered to the Non-Selling Stockholders shall be the price specified in
the Notice.
(iii)If exercised by a Non-Selling Stockholder pursuant hereto, the right to
purchase the Offered Securities shall be exercised by written notice,
signed by such Non-Selling Stockholder, and delivered or mailed to the
Company and the Selling Stockholder as provided in Section 11(c) hereof.
The exercise of the option shall specify the time, place and date for
settlement of such purchase, which shall be consummated at a closing held
at the Company within ten (10) days after the expiration of the notice
period specified in Section 1(b)(ii). The Company shall promptly, in
writing, inform each Non-Selling Stockholder which purchases all the shares
available to it (a "Fully-Exercising Stockholder") of any other Non-Selling
Stockholder's failure to do likewise. During the seven (7) day period
commencing after receipt of such information, each Fully-Exercising
Stockholder shall be entitled to obtain that portion of the Shares for
which Non-Selling Stockholders were entitled to subscribe but which were
not subscribed for by the Non-Selling Stockholders (the "Unsubscribed
Shares") which is equal to the product of (i) the amount of Unsubscribed
Shares multiplied by (ii) a fraction, the numerator of which shall be the
number of shares of Common Stock of the Company held by such
Fully-Exercising Stockholder (on an as-converted basis), respectively, and
the denominator of which shall be the aggregate number of shares of Common
Stock owned by all Fully-Exercising Stockholders who wish to purchase
Unsubscribed Shares (on an as-converted basis).
(c) Permitted Sales of Refused Securities. If neither the
Company nor the Non-Selling Stockholders have purchased all of the Offered
Securities under their respective rights of first refusal as described herein,
the Selling Stockholder may sell all of the Offered Securities to any person at
the price specified in the Notice or at a higher price, provided that such sale
or transfer is consummated within one hundred twenty (120) days of the date of
the Notice, and provided further that any such sale is in accordance with all
the terms and conditions hereof. If the Selling Stockholder fails to consummate
the sale or transfer within such one hundred twenty (120) day period, the option
of the Company and the Non-Selling Stockholders provided hereby shall be deemed
to be revived with respect to such shares and no sale or transfer of Shares
shall be effected without first offering the shares in accordance herewith.
(d) Exempt Transfers. In addition to the permissible transfers
set forth in Section 6 hereof, the rights of first refusal herein shall not
pertain or apply in the case of:
(i) transfers in connection with a bona fide business acquisition of the
Company, whether by merger, consolidation, sale of assets, sale or exchange
of stock or otherwise; or
(ii) transfers pursuant to a public offering registered under the Securities
Act.
2. Co-Sale Right. Subject to the rights of first refusal set forth in
------------- Section 1 hereof:
(a) In the event any of the Stockholders receive one or more
bona fide offers (collectively, the "Purchase Offer") from a third party to
purchase from such Stockholder (hereinafter referred to in this Section 2 as the
"Selling Stockholder") any or all of its Shares, upon specific terms and
conditions (including a specified purchase price payable in cash or other
property), then such Stockholder shall promptly provide to the Company and the
other Stockholders written notice of the terms and conditions of such Purchase
Offer (such notice is referred to herein as the "Transfer Notice"), and the
following provisions shall apply.
(b) Each of the other Stockholders shall have the right,
exercisable upon written notice to the Company and the Selling Stockholder
within fifteen (15) business days after receipt of the Transfer Notice, to
participate in the Selling Stockholder's sale of such stock pursuant to the
specified terms and conditions of such Purchase Offer. To the extent one or more
of the other Stockholders exercises such right of participation in accordance
with the terms and conditions set forth below, the number of shares of capital
stock which the Selling Stockholder may sell pursuant to such Purchase Offer
shall be correspondingly reduced. The right of participation of each of the
other Stockholders shall be subject to the following terms and conditions:
(i) Each of the other Stockholders may sell all or any part, of that number of
shares of the Company's Common Stock, or shares of the Company's Preferred
Stock or other convertible securities on an as-converted basis, being sold
by the Selling Stockholder equal to the product obtained by multiplying,
(x) the aggregate number of shares of Common Stock covered by the Purchase
Offer (assuming conversion of any Preferred Stock and other convertible
securities) by (y) a fraction, the numerator or which is the number of
shares of such Common Stock of the Company (assuming conversion of any
Preferred Stock and other convertible securities) owned at the time by such
Stockholder wishing to participate, and the denominator of which is the
combined number of shares of Common Stock of the Company (assuming
conversion of any Preferred Stock and other convertible securities) owned
at the time by the Selling Stockholder and the other Stockholders;
(ii) To the extent one of the other Stockholders elects not to sell the full
number of Shares it is entitled to sell pursuant to Section 1(b)(i) above,
the other Stockholders' rights to participate in the sale shall be
increased pro rata by a corresponding number of shares; and
(iii)Each of the other Stockholders participating in such sale shall effect its
participation in any such sale by delivering to the Company for transfer to
the third-party offeror one or more certificates, properly endorsed for
transfer, which represent the number of shares of the capital stock of the
Company which such Stockholder elects to sell pursuant to this Section 2.
(c) The stock certificates which the other Stockholders
deliver to the Company pursuant to this Section 2 shall be transferred by the
Company to the third-party offeror in consummation of the sale of the Company's
capital stock being sold pursuant to the terms and conditions specified in the
Transfer Notice, and the Company shall promptly thereafter remit to the other
Stockholders that portion of the proceeds of the sale to which the other
Stockholders are entitled by reason of their participation in such sale.
(d) The exercise or non-exercise of the rights of the other
Stockholders hereunder to participate in one or more sales by the Selling
Stockholder shall not adversely affect their rights to participate in subsequent
sales by the Selling Stockholder.
(e) For purposes of this Section 2 only, the definition of the
term "Stockholder" shall not include FMA High Yield Income L.P., WSIS High Yield
Income L.P., WSIS Flexible Income Partners L.P., or any transferee thereof
(collectively, "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), unless the number of shares to be purchased
under a Purchase Offer exceeds fifty percent (50%) of the then outstanding
shares of Common Stock of the Company (on an as-converted basis).
3. Right to Purchase.
(a) Notwithstanding anything contained in Section 1 or Section
2 of this Agreement, if at any time Salsero I, Salsero II and Founder have all
of their Franchise Agreements terminated by the Franchisor as a result of
Salsero I and/or Salsero II and/or Founder failing to substantially comply with
their Franchise Agreements and their failure to diligently pursue to cure said
deficiencies or breaches, and said termination is accepted by Salsero I, Salsero
II and Founder, in writing, or said Franchise Agreements are deemed terminated
by a Court of competent jurisdiction and said judgment becomes final (a
"Termination Event"), the Company shall have the right within ninety (90) days
after the date of the Termination Event to purchase all of the Shares then owned
by Founder at the price set forth below.
For purposes of this Section 3, "Personal Representative" shall mean the person
or persons, including any bank or trust company, who shall be the duly
appointed, qualified, and acting executor or executors of the last will and
testament of the Founder, or the duly appointed, qualified, and acting
administrator, administrator with the will annexed, or administrator to collect
of the estate of the Founder.
(b) Within ninety (90) days after the date of a Termination
Event, the Company shall have the right to: (i) first, purchase all, but not
less than all, of the Shares held by the Founder by giving written notice
thereof to the Founder, or his Personal Representative, as the case may be; and
(ii) second, purchase some, but not all of the Shares held by Founder and offer
to the other Stockholders those Shares held by Founder the Company elects not to
purchase (the "Available Shares"). If the Company elects to purchase all of the
Founder's Shares, the notice shall specify a date for the closing of such
purchase which shall be not more than thirty (30) days after the Termination
Event.
(c) If the Company elects not to purchase all of the Shares
held by the Founder, the Company shall, within ninety (90) days after such
Termination Event, notify the Founder, or his Personal Representative, as the
case may be, and all other Stockholders (hereinafter in this Section 3 referred
to individually and collectively as the "Offerees"), that it will not be
purchasing all of the Shares of such Founder. Such notice shall indicate the
number of Shares (if any) the Company will purchase and the number of Available
Shares. The Offerees shall then have the option, exercisable within thirty (30)
days after receipt of such notice from the Company, to purchase all, but not
less than all, of the Available Shares of the Founder, in proportion to their
respective ownership of the Company's capital Stock at the time, and to the
extent one of the other Offerees elects not to purchase the full number of
Shares it is entitled to purchase pursuant to this Section 3(c), the other
Offerees rights to participate in such purchase shall be increased pro rata by a
corresponding number of shares. The option set forth in this Section 3(c) shall
be exercised by written notice from the Offerees given to the Founder, or his
Personal Representative, as the case may be, and the Company within thirty (30)
days after receipt of such notice from the Company. Said notice shall specify a
date for the closing of the purchase which shall be not more than thirty (30)
days after receipt of the notice by the Company. The purchase price per share at
which the Offerees may purchase said Available Shares, and the terms and
conditions of such purchase, shall be the same as the price per share, and the
terms and conditions, at which the Company may purchase Shares pursuant to
Sections 3(b), 3(d) and 3(e) hereof. If the Company and/or one or more Offerees
are purchasing Shares pursuant hereto, the closings of such purchases shall be
simultaneous and shall be conditioned on one another. If at the end of thirty
(30) days after receipt of such notice from the Company, the Offerees have not
committed to purchase all of the Available Shares, then the rights of the
Company and the Offerees under Sections 3(b) and 3(c) herein shall be
terminated.
(d) The price of the Shares being purchased pursuant to this
Section 3 will be equal to the fair market value of such Shares as of the
Termination Date, which value will be determined by mutual agreement between the
Company and the Founder, or his Personal Representative, as the case may be;
provided, however, that in the event that such mutual agreement is not reached
within thirty (30) days after the exercise by the Company or the Offerees of
their purchase rights hereunder (the "Exercise Date"), the fair market value of
such Shares shall be determined through an appraisal by an independent third
party mutually acceptable to such parties. In the event that such parties cannot
agree on an independent third party appraiser within forty-five days after such
Exercise Date, the Founder, or his Personal Representative, as the case may be,
shall select one (1) appraiser, and the Company, or Offerees who are purchasing
a majority of the Shares, as the case may be, shall select one (1) appraiser,
both selections to be made within sixty (60) days after such Exercise Date.
These two appraisers shall submit their respective valuations for the Shares
within thirty (30) days after their selection. If the higher of the two
valuations is within 10% of the lower, the average of such valuations will be
deemed the fair market value of the shares in question. Otherwise, the two
appraisers shall select a third appraiser who shall submit a valuation within
sixty (60) days of the selection of the two initial appraisers. At that time,
the valuation submitted which deviates the most from the average of the three
valuations shall be disregarded, and the average of the remaining two valuations
shall be deemed to be the applicable fair market value. In the event the
valuation of such Shares is determined by appraisal, the cost of such appraisal
shall be borne by the party who appointed the appraiser whose valuation deviated
the most from the final valuation.
(e) The purchase price of the Shares being purchased pursuant
to this Section 3 shall be payable at the closing, as specified in Section 5
hereof, at the option of the Company or any Offeree, as the case may be, either
(i) in cash, or (ii) with ten percent (10%) of such purchase price paid in cash,
and the remaining balance paid by a promissory note, with such promissory note
having a term of five (5) years, bearing interest at a fixed rate equal to the
prime lending rate, as determined on the business day immediately prior to such
closing by Bank of America, and providing for accrued interest to be due and
payable quarterly and principal amounts to be due and payable in five equal
annual installments; provided, that such promissory note shall be substantially
in the form of the Founder's Note as defined in the Asset Purchase Agreement.
(f) Notwithstanding anything to the contrary in this
Agreement, if the Company has the right to purchase Shares pursuant to this
Section 3, but, at the applicable time, the Company at such time is prohibited
or restricted from doing so by reason of any loan agreement or debt covenant,
then the Company's rights and options, shall be tolled and suspended for a
period of three (3) months from the date such rights or options first became
exercisable (provided that the Company shall have an additional three (3) months
to close any purchase of the Founder's Shares). In such case, all references in
this Section 3 to dates and time periods shall be deemed delayed for so long as
necessary to give effect to the provisions of this Section 3(f).
(g) Upon expiration of all purchase options of the Company and
the Offerees, the Shares shall no longer be subject to the provisions of this
Section 3, but shall continue to be subject to all of the other restrictions and
rights contained in this Agreement.
(h) Non-Competition.
(i) The Founder agrees that in the event his or her Shares are purchased by the
Company or the Offerees pursuant to this Section 3, he shall not engage
(except in his capacity as an officer, director, and/or employee of the
Company), directly or indirectly, whether on his own account or as a
shareholder (other than as a shareholder of the Company or as a less than
2% shareholder of a publicly-held company), partner, joint venturer,
employee, consultant, advisor and/or agent, of any person, firm,
corporation, or other entity, in any or all of the following activities in
any of the counties of California in which La Salsa is doing business at
the date of the closing of the purchase of Founder's Shares, for a period
of three (3) years after the date of the termination referred to in Section
3(a):
(A) Own, operate or franchise (1) any Mexican or
"south of the border" type restaurant, including without limitation, one which
utilizes the concepts of "tacos al carbon" or "tacquerias" or (2) any business
which sells, distributes or in any other way markets retail products which the
Company has researched, developed or marketed prior to the Founder's termination
of employment;
(B) Solicit customers or business patronage which
results in competition with the Company or any of its affiliates in any of the
types of business described in (A) above;
(C) Promote or assist, financially or otherwise,
any person, firm, association, corporation, or other entity engaged in any of
the types of business described in clause (A) above; or
(D) Solicit, offer employment to or hire any
employee of the Company or any of its subsidiaries in connection with the types
of business described in (A) above.
(ii) Without limitation, the parties agree and intend that the covenants
contained in this subsection 2(h) shall be deemed to be a series of
separate covenants and agreements, one for each and every county of each
state and political subdivision of the United States and other nation to
which this Agreement is applicable. If, in any judicial proceeding, a court
shall refuse to enforce in such action all of the separate covenants deemed
included herein, then at the option of the Company, wholly unenforceable
covenants shall be deemed eliminated from the provisions hereof for the
purpose of such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such a proceeding.
(iii)In the event the agreement in this Section 3(h) shall be determined by any
court of competent jurisdiction to be unenforceable by reason of its
extending for too great a period of time or over too great a geographical
area or by reason of its being too extensive in any other respect, it shall
be interpreted to extend over the maximum period of time for which it may
be enforceable and over the maximum geographical area as to which it may be
enforceable and to the maximum extent in all other respects as to which it
may be enforceable, and enforced as so interpreted, all as determined by
such court in such action. The parties hereto acknowledge and agree that
the time, scope, geographic area and other provisions of this Section 3(h)
have been specifically negotiated by sophisticated parties represented by
counsel of their own selection and specifically hereby agree that such
time, scope, geographic area and other provisions are reasonable under the
circumstances.
(iv) The parties agree that due to the unique nature of the services and
capabilities of Kabrins, there can be no adequate remedy at law for any
breach of his obligations hereunder, that any such breach may allow Kabrins
and/or third parties to unfairly compete with the Company resulting in
irreparable harm to the Company, and therefore, that upon any such breach
or any threat thereof, the Company shall be entitled to appropriate
equitable relief in addition to whatever remedies it might have at law.
Further, the Company shall be entitled to indemnification by Kabrins from
any loss or harm, including, without limitation, attorney's fees, in
connection with any breach, or any enforcement of his obligations
hereunder.
4. Further Restriction on the Shares.
For as long as the Shares are subject to the restrictive provisions set forth in
Sections 1, 2 and 3 of this Agreement, the Stockholders shall not pledge or
encumber any or all Shares which now or hereafter may be held or owned by them
provided, however, that Kabrins may pledge up to fifty percent (50%) of the
Shares owned by him to a nationally recognized financial institution if such
institution agrees in writing with the Company and the other Stockholders that
it will otherwise become a party to and bound by this Agreement.
5. Closing.
The closing of the purchase and sale of Shares pursuant to Section 3 of this
Agreement shall take place at the principal business office of the Company. On
the date of closing, the applicable Stockholder shall tender to the Company
and/or the applicable Offerees, as the case may be, certificates evidencing the
number of Shares to be purchased and sold pursuant to the terms hereof, properly
endorsed for transfer to the applicable purchaser with signature guaranteed, and
accompanied by any other documents which are necessary in the reasonable opinion
of the Company to evidence the authority of the applicable Offeror to make such
sale and transfer good title to the Shares. The Company and/or each applicable
Offeree, as the case may be, shall pay to the Stockholder the aggregate purchase
price of the Shares being purchased by it, him or her by delivering to the
Stockholder a promissory note in accordance with terms of this Agreement and/or
by delivering immediately available funds to the Stockholder, as applicable.
6. Permissible Transfers.
Notwithstanding the above, and except as otherwise set forth in Section 3 of
this Agreement, any rights granted under this Agreement to the Company or the
Stockholders with respect to transfers of Shares by other Stockholders shall not
apply to a transfer by a Stockholder (i) to the estate of such Stockholder, or
by gift, will, or intestate succession of such Stockholder to his or her spouse
or to the siblings, lineal descendants, or ancestors of such Stockholder or his
or her spouse, (ii) to a trust for the benefit of such Stockholder's spouse or
to the siblings, lineal descendants or ancestors of such Stockholder or his or
her spouse, (iii) between any Stockholders, (iv) as provided in Section 7 below;
(v) in the case of a Stockholder which is not a natural person, to any person(s)
or entity controlling, controlled by or under common control with such
Stockholder or in the case of a partnership to any partner thereof, so long as
such transfer does not violate any applicable securities laws; (vi) in the case
of ▇▇▇▇▇▇, the transfer of 82,000 shares of Series A Convertible Preferred Stock
to Kabrins, (vii) in the case of Kabrins, the sale of 461,538 shares of Series A
Convertible Preferred Stock to the Company or its designee pursuant to that
certain Supplemental Agreement between Kabrins and the Company dated as of May
12, 1993, the pledge of 115,000 shares of Series A Convertible Preferred Stock
to ▇▇▇ ▇▇▇▇▇ pursuant to that certain Settlement Agreement and Mutual General
Release dated January 10, 1995, by and among Kabrins, Sylvano, Inc., a
California corporation, L.S. Malibu Partnership, a California limited
partnership, La Salsa Management, Inc., a California corporation, ▇▇▇ ▇▇▇▇▇,
Sienna and the Company, the transfer of 10,000 shares of Series A Convertible
Preferred Stock to ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to that certain Stock Transfer
Agreement dated October 12, 1995, by and among Kabrins, ▇▇▇▇▇ ▇▇▇▇▇▇ and Sienna
Holdings, Inc. (the "▇▇▇▇▇▇ Transfer"), or the transfer of 9,000, 4,500 and
4,500 shares of Series A Convertible Preferred Stock to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, respectively (the "Management
Transferees") pursuant to certain Stock Transfer Agreements dated November 14,
1995, by and between Kabrins and each of the Management Transferees (the
"Management Transferee Transfers"); provided, however, that, in all cases above,
the transferee shall agree in writing to be subject to the terms hereof,
including the restrictions set forth in Section 3 hereof, to the same extent as
if he, she, or it were an original Stockholder of the Company and, in the case
of a transfer by Kabrins or his transferees other than either the ▇▇▇▇▇▇
Transfer or the Management Transferee Transfers, to be subject to the terms of
the Voting Trust Agreement dated as of March 4, 1992, as amended, among certain
Stockholders and Sienna Holdings, Inc. as if such transferee were Kabrins.
7. Ownership Among Kabrins and La Salsa.
The parties hereto acknowledge that at the time the Shares were issued by the
Company pursuant to the Asset Purchase Agreement, such Shares were held
beneficially by La Salsa and not by Kabrins individually. Until such time as the
Shares are distributed to Kabrins, as an individual, La Salsa shall be treated
as a "Stockholder" for purposes of this Agreement and any proposed sales,
transfers, pledges, assignments, or encumbrances by La Salsa of any of the
Shares held by La Salsa shall be subject to the terms hereof; provided, that it
is agreed and understood that promptly following the issuance of the Shares, La
Salsa may distribute its Shares to Kabrins free of the provisions of Sections 1
and 2 herein.
8. Right of First Offer on Company Issuances.
(a) If the Company proposes to issue any equity securities or
other securities convertible into capital stock of the Company, it shall give
written notice thereof to each of the Stockholders at least thirty (30) days
prior to the date of the proposed issuance. Such notice shall state (i) the
title of the securities to be issued, (ii) the issue price, (iii) the type of
consideration for the issuance and (iv) if the securities are not voting common
stock, the rights, privileges, preferences and other terms thereof. Each
Stockholder shall have fifteen (15) days in which to notify the Company in
writing that it will subscribe for and purchase up to all of its pro rata share
(pro rata to its combined ownership of the Shares, on an as-converted basis) of
such securities on the terms specified in the Company's notice. If a Stockholder
does not so subscribe, then those Stockholders who did subscribe shall have the
right to increase their subscriptions proportionately.
(b) After the notices described in Section 8(a) herein have
all been given, the Company shall have the right to cancel the proposed issuance
or proceed therewith, in which case the closing shall take place at a place and
on a date to be set by the Company upon at least ten (10) days prior written
notice. In any event, the closing pursuant to Section 8(a) or (b) herein shall
take place simultaneously with the closing of the remainder of the issuance.
(c) Notwithstanding the above, the provisions of this Section
8 shall not apply to (i) any issuance or proposed issuance of securities upon
the conversion, exchange or exercise of warrants, options, rights or other
securities previously issued in compliance with this Agreement, (ii) the
issuance to consultants to and former employees of the Company of options to
purchase an aggregate of 65,000 shares of Common Stock, (iii) any adjustment to
the number of warrant shares or exercise price required pursuant to the warrant
held by Foothill Capital Corporation dated February 20, 1993, initially to
purchase 100,000 shares of Common Stock, (iv) the issuance of options to
purchase, at no less than the fair market value of the Common Stock on the date
of such issuance, 2,877,820 shares of Common Stock pursuant to any stock option
plan or similar arrangement hereinafter instituted by the Corporation or any of
its Subsidiaries, (v) securities to the public pursuant to an effective
registration statement, (vi) securities as consideration, in whole or in part,
for the acquisition, in whole or in part, of a corporation or other business or
the assets thereof, (vii) the issuance of up to 1,000,000 shares of the
Company's Class B Common Stock, (viii) the sale and issuance of up to 4,166,667
shares of the Company's Series D Convertible Preferred Stock to CDV pursuant to
that certain Series D Convertible Preferred Stock and Warrant Purchase Agreement
of even date herewith (the "CDV Purchase Agreement") or (ix) the sale and
issuance of the CDV Warrant pursuant to the CDV Purchase Agreement.
9. Election of Directors.
(a) Each of the Stockholders hereby agrees that for the term
of this Agreement, the board of directors of the Company shall, except as set
forth in Sections 9(e) and 9(f) below, consist of (i) four nominees designated
by Sienna and InterWest, (ii) two nominees designated by the Founder, (iii) one
nominee designated by the holders of a majority of the outstanding Series B
Convertible Preferred Stock (excluding Sienna and InterWest), (iv) one nominee
designated by ▇▇▇▇▇▇▇▇ Wertheim, (v) a number of nominees determined pursuant to
Section 9(g) below designated by CDV (or its successor, as set forth in Section
9(g) below) and (vi) one representative of Company management to be nominated by
a majority of the other directors. Each Stockholder shall vote its Shares, and
shall take all actions necessary, to ensure that the number of directors
constituting the entire board of directors shall be equal to the total number of
nominees as set forth above.
(b) Each Stockholder hereby agrees to vote all Shares owned
or held of record by it at each annual or special meeting in favor of, or to
take all actions by written consent in lieu of any such meeting necessary to
cause, the election as members of the board of directors of those individuals
nominated in accordance with, and to otherwise effect the intent of, this
Section 9.
(c) Each Stockholder hereby agrees that, except as set forth
in Sections 9(e), (f) and (g) herein, no directors shall be removed unless the
Stockholder which designated such nominee pursuant to Section 9(a) herein shall
have voted in favor of or consented in writing to such removal.
(d) In the event that a vacancy is created on the board of
directors by the death, disability, retirement, resignation or removal of a
director, each Stockholder agrees to use its best efforts to cause the directors
designated by it to vote for an individual designated to fill such vacancy and
serve as a director by whichever Stockholder had designated (pursuant to Section
9(a) above) the director whose death, disability, retirement, resignation or
removal resulted in such vacancy; provided, however, that such individual so
designated may not previously have been a director of the Company who was
removed from the board of directors.
(e) Notwithstanding anything to the contrary in this Section
9, if the Founder disposes of more than five percent (5%) but less than fifty
percent (50%) of the number of Shares initially issued to him by the Company in
connection with the closing of the transactions pursuant to the Asset Purchase
Agreement (such number to be adjusted to give effect to stock splits, stock
dividends and similar occurrences) (the "Initial Shares"), he shall only be
entitled to nominate one (1) director and the board of directors shall reduce
the number of total directors accordingly. To give effect to such change, the
Founder shall cause one of his nominated directors to resign, and, if no such
resignation occurs, each Stockholder shall take any and all actions required to
effect such removal. If the Founder disposes of more than fifty percent (50%) of
the Initial Shares, the Founder shall not be entitled to nominate any directors,
the board of directors shall reduce the number of total directors accordingly,
and the procedures set forth in the immediately preceding sentence shall be
followed with respect to all of the directors previously nominated by the
Founder.
(f) Notwithstanding anything to the contrary in this Section
9, in the event of the occurrence of any of the following events (a "▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Change of Control"): (i) a change of more than fifty percent (50%) of
the voting power of FMA High Yield Income, L.P., WSIS Flexible Income Partners
L.P. or WSIS High Income L.P. (collectively, the "▇▇▇▇▇▇▇▇ Wertheim Entities"),
or any entity controlling, controlled by or under common control with any of the
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities or (ii) the sale of all or substantially all of the
assets of any of the ▇▇▇▇▇▇▇▇ Wertheim Entities, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall not be
entitled to nominate any directors and the board of directors shall reduce the
number of total directors accordingly. To give effect to such change, ▇▇▇▇▇▇▇▇
Wertheim shall cause its nominated director to resign, and, if no such
resignation occurs, each Stockholder shall take any and all actions required to
effect the removal of such director.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities shall provide written notice (the "Change of
Control Notice") of any ▇▇▇▇▇▇▇▇ Wertheim Change of Control to the Company, to
be delivered as provided in Section 11(c) hereof, within fifteen (15) days of
such ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Change of Control.
(g) So long as CDV holds at least 2,066,116 shares of the
Company's Series D Convertible Preferred Stock (4,424,020 shares if CDV has
exercised the CDV Warrant), CDV shall be entitled to nominate a number of
directors equal to the greater of (x) one director (two directors if CDV has
exercised the CDV Warrant in full) and (y) that number of directors such that
(i) the ratio of members of the Company's Board of Directors nominated by CDV to
the total number of members of the Company's Board of Directors is equal to (ii)
the ratio of the number of outstanding shares of the Company's Common Stock held
by CDV (assuming conversion of shares of Convertible Preferred Stock, but not
assuming the exercise of any options or warrants) to the number of outstanding
shares of the Company's capital stock (calculated on a fully-diluted basis), and
the board of directors shall increase or decrease the number of total directors
accordingly as necessary. In the event that the foregoing calculation would
result in a fraction, the number of directors that CDV shall be entitled to
nominate shall be rounded to the nearest whole number.
In the event that CDV holds less than 2,066,116 shares of the Company's Series D
Convertible Preferred Stock (4,424,020 shares if CDV has exercised the CDV
Warrant), CDV shall be entitled to nominate a number of directors such that (i)
the ratio of members of the Company's Board of Directors nominated by CDV to the
total number of members of the Company's Board of Directors is equal to (ii) the
ratio of the number of outstanding shares of the Company's Common Stock held by
CDV (assuming conversion of shares of Convertible Preferred Stock, but not
assuming the exercise of any options or warrants) to the number of outstanding
shares of the Company's capital stock (calculated on a fully-diluted basis), and
the board of directors shall increase or decrease the number of total directors
accordingly as necessary. In the event that the foregoing calculation would
result in a fraction, the number of directors that CDV shall be entitled to
nominate shall be rounded to the nearest whole number.
In the event that a single person acquires from CDV all of the shares of the
capital stock of the Company either (i) purchased under that certain Series D
Convertible Preferred Stock and Warrant Purchase Agreement of even date
herewith, by and between the Company and CDV, and, if exercised, the CDV Warrant
or (ii) issued upon conversion of such shares, then the rights of CDV hereunder
to designate nominees to the Company's Board of Directors shall terminate and be
of no further force and effect and, in lieu thereof, such acquiror shall have
the right to designate one (1) nominee to the Company's Board of Directors, and
the board of directors shall adjust the number of total directors accordingly.
10. ▇▇▇▇▇▇▇▇ Wertheim Change of Control Right of First Refusal. In the event of
a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Change of Control, the Company shall have the right, at any
time within fifteen (15) days of receipt by the Company of the Change of Control
Notice, to purchase all, but not less than all, of the Shares held by the
▇▇▇▇▇▇▇▇ Wertheim Entities (the "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shares") at (i) if the
▇▇▇▇▇▇▇▇ Wertheim Shares are shares of capital stock of the Company, a price per
share equal to the original purchase price of such ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shares or
(ii) if the ▇▇▇▇▇▇▇▇ Wertheim Shares are Senior Subordinated Convertible Notes
due 2002 (the "Series D Notes"), at a purchase price equal to the aggregate
principal amount of such Series D Notes, plus any accrued but unpaid interest.
Such right shall be exercised by written notice signed by an officer of the
Company and delivered or mailed as provided in Section 11(c) hereof, which
notice shall specify the time, place and date for settlement of such purchase.
11. Miscellaneous.
(a) Endorsement on Stock Certificates. Each certificate
representing Shares of the Company now or hereafter held by the Stockholders
shall be stamped with a legend in substantially the following form:
"The transfer of the shares of stock represented by this
certificate is restricted under the terms of a Fourth Amended and
Restated Restricted Stock Agreement dated January 12, 1996, a copy of
which is on file at the office of the Company."
(b) Specific Performance. The parties hereby declare that it
is impossible to measure in money the damages which would accrue to one or more
parties hereto, by reason of a failure of a party hereto to perform any of the
obligations under this Agreement. Therefore, if any party hereto shall institute
any action or proceeding to enforce the provisions hereof, any person (including
the Company) against whom such action or proceeding is brought hereby waives the
claim or defense therein that such party, or his or her Personal Representative,
as the case may be, has an adequate remedy at law, and such person shall not
urge in any such action or proceeding the claim or defense that such remedy at
law exists.
(c) Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and to the party to
be notified at the address indicated for such party on the signature page
hereof, or at such other address as such party may designate by ten (10) days'
advance written notice to the other parties, provided, that in the case of
notice to the Company, a copy shall be delivered to each Stockholder also. Any
notice intended for the estate of a party hereto shall be addressed to the
Personal Representative of such party at the address appearing on the records of
the Court by which such Personal Representative was appointed. A copy of any
notices sent to the Company shall be sent to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Two
Embarcadero Place, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq. All notices and communications shall be deemed to have been received: (i)
in the case of personal delivery, on the date of such delivery; (ii) in the case
of telex or facsimile transmission, on the date on which the sender receives
confirmation by telex or facsimile transmission that such notice was received by
the addressee, provided that a copy of such transmission is additionally sent by
mail as set forth in (iv) below; (iii) in the case of overnight air courier, on
the second business day following the day sent, with receipt confirmed by the
courier; and (iv) in the case of mailing by first class certified or registered
mail, postage prepaid, return receipt requested, on the fifth business day
following such mailing.
(d) Invalid Provision. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other provisions
hereof, and the Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
(e) Modification. No change, modification, or amendment of
this Agreement shall be valid without the written consent of the holders of at
least two-thirds (2/3) of the Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock and Series D
Convertible Preferred Stock, voting together as a single class.
(f) Benefit of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, and its successors and assigns,
the Stockholders, and his or her heirs, executors, administrators, and personal
representatives, and such other person or persons who may, from time to time,
become owners of the shares of capital stock of the Company, and become bound by
all the terms and conditions of this Agreement; provided, however, that the
rights granted to certain Stockholders in Section 9(a) to designate nominees to
the Company's Board of Directors may not be assigned without the prior written
consent of the Company.
(g) Term of Agreement. Except as otherwise specified herein,
this Agreement shall remain in force and effect until the consummation of an
underwritten public offering of the Common Stock of the Company with aggregate
proceeds to the Company in excess of $10,000,000, unless sooner terminated by
agreement among the Company and the Stockholders; provided, however, that
termination of this Agreement in the manner hereinbefore provided shall not
affect the validity of the exercise of any options contained herein prior to
such termination.
(h) Attorneys' Fees; Expenses.
(i) If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement or to protect the rights obtained hereunder the
prevailing party shall be entitled to its reasonable attorneys, fees,
costs, and disbursements in addition to any other relief to which it may be
entitled.
(ii) Each Stockholder shall pay in full all fees, costs and disbursements,
direct or indirect, incurred by the Company in connection with the sale or
transfer by such Stockholder to a third party of any Shares registered in
the name of such Stockholder, including a transfer by operation of law or
other involuntary transfer.
(i) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California (without regard to the
application of choice of law rules), except with respect to matters of law
concerning the internal corporate affairs of any corporate entity which is a
party hereto, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
(j) Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the same
original Agreement.
(k) Final Terms. This Agreement is the full and complete
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements, negotiations and understandings, written or
oral, including without limitation, the Original Agreement, the Amended
Agreement, as amended, and the Second Amended Agreement, as amended, and the
Original Agreement, the Amended Agreement, as amended, the Second Amended
Agreement, as amended, and the Third Amended Agreement are hereby terminated and
shall be of no further force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
LA SALSA HOLDING CO.,
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HOWDY S. KABRINS
/s/ Howdy S. Kabrins
--------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LA SALSA, INC.,
a California corporation
By: /s/ Howdy S. Kabrins
---------------------------
Howdy S. Kabrins,
President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIENNA LIMITED PARTNERSHIP I
California Limited Partnership
By: SIENNA ASSOCIATES, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman of the General Partner
Address: One Market
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIENNA LIMITED PARTNERSHIP II
a California Limited Partnership
By: SIENNA ASSOCIATES, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman of the General Partner
Address: One Market
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIENNA HOLDINGS, INC.
a California corporation, as Nominee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman
Address: One Market
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INTERWEST PARTNERS IV
a California Limited Partnership
By: INTERWEST MANAGEMENT
PARTNERS IV, L.P., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
FMA HIGH YIELD INCOME L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
INVESTMENT SERVICES, INC., its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nominee (name in which the
securities are registered
if different than name of
Stockholder):
Lewco Securities Corp.
Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
WSIS FLEXIBLE INCOME PARTNERS L.P.
By: ▇▇▇▇▇▇▇▇ WERTHEIM
INVESTMENT SERVICES, INC., its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:Director
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nominee (name in which the
securities are registered
if different than name of
Stockholder):
Lewco Securities Corp.
Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
WSIS HIGH INCOME L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
INVESTMENT SERVICES, INC., its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:Director
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Nominee (name in which the
securities are registered
if different than name of
Stockholder):
Lewco Securities Corp.
Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
CASUAL DINING VENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title:Senior Vice President
Address: One Corporate Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NUEBERGER & ▇▇▇▇▇▇ AS TRUSTEE FOR THE CROWN TRUST
By: /s/
-----------
Name: (illegible)
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CROWN ASSOCIATES III, L.P.,
a Delaware Limited Partnership
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Partner
Crown Partners III, L.P.
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
CROWN-▇▇▇▇▇ ASSOCIATES, L.P.,
a Delaware Limited Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
Crown-▇▇▇▇▇ Partners, L.P.
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
NORO-▇▇▇▇▇▇▇ PARTNERS II, L.P.
a Georgia Limited Partnership
By: ▇▇▇▇▇▇▇ and Company II, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:General Partner
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Address: Building B-107 Greenville Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ SALSA, L.P.,
a Delaware Limited Partnership
By: THE ▇▇▇▇▇▇▇ COMPANY, its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BANKERS TRUST COMPANY AS
MASTER TRUSTEE FOR ▇▇▇▇▇▇
AIRCRAFT RETIREMENT PLANS
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Attorney-in-Fact
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Inc.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SCHEDULE 1
Stockholders (in addition to those Stockholders listed in the first paragraph of
this Agreement)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Crown Associates III, L.P.
Crown-▇▇▇▇▇ Associates, L.P.
Nueberger & ▇▇▇▇▇▇ as Trustee for The Crown Trust
Noro-▇▇▇▇▇▇▇ Partners II, ▇.▇.
▇▇▇▇▇▇▇ Salsa, L.P.
Bankers Trust Company, as Master Trustee for ▇▇▇▇▇▇ Aircraft Retirement Plans
FMA High Yield Income L.P.
WSIS Flexible Income Partners L.P.
WSIS High Yield Income L.P.
Sienna Limited Partnership II
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Casual Dining Ventures, Inc.