SECURITIES HOLDERS AGREEMENT by and among BRAVO DEVELOPMENT, INC., BRAVO DEVELOPMENT HOLDINGS LLC, ALTON F. DOODY, III, JOHN C. DOODY, and THE OTHER INVESTORS AND PARTIES NAMED HEREIN Dated as of June 29, 2006
Exhibit 10.6
by and among
BRAVO DEVELOPMENT, INC.,
BRAVO DEVELOPMENT HOLDINGS LLC,
▇▇▇▇▇ ▇. ▇▇▇▇▇, III,
▇▇▇▇ ▇. ▇▇▇▇▇,
and
THE OTHER INVESTORS AND PARTIES NAMED HEREIN
Dated as of June 29, 2006
TABLE OF CONTENTS
| Page | ||||
ARTICLE I RESTRICTIONS ON TRANSFER OF SECURITIES |
2 | |||
1.1. Restrictions on Transfers of Securities |
2 | |||
1.2. Legend |
4 | |||
1.3. Notation |
4 | |||
ARTICLE II OTHER COVENANTS AND REPRESENTATIONS |
5 | |||
2.1. Financial Statements and Other Information |
5 | |||
2.2. Preemptive Rights |
6 | |||
2.3. Corporate Opportunity |
7 | |||
ARTICLE III RIGHT OF FIRST REFUSAL AND INVOLUNTARY TRANSFERS |
8 | |||
3.1. Right of First Refusal |
8 | |||
3.2. Involuntary Transfers |
8 | |||
3.3. Purchaser Representative |
11 | |||
ARTICLE IV MISCELLANEOUS |
11 | |||
4.1. Amendment and Modification |
11 | |||
4.2. Successors and Assigns |
11 | |||
4.3. Severability |
11 | |||
4.4. Notices |
11 | |||
4.5. Governing Law |
13 | |||
4.6. Headings |
13 | |||
4.7. Counterparts |
13 | |||
4.8. Further Assurances |
13 | |||
4.9. Termination |
13 | |||
4.10. Remedies |
13 | |||
4.11. Party No Longer Owning Securities |
14 | |||
4.12. No Effect on Employment |
14 | |||
4.13. Pronouns |
14 | |||
4.14. Jurisdiction and Venue |
14 | |||
i
| Page | ||||
4.15. Waiver of Jury Trial |
14 | |||
4.16. Entire Agreement |
14 | |||
4.17. Management Agreements |
15 | |||
ARTICLE V DEFINITIONS |
15 | |||
5.1. Definitions |
15 | |||
-ii-
EXHIBITS |
||
Exhibit A |
Joinder Agreement | |
Exhibit B |
Form of Management Agreement |
SCHEDULES
Schedule I |
Investors and Securities Owned |
-iii-
DEFINED TERMS
Affiliate |
15 | |||
Agreement |
1 | |||
Annual Reports |
5 | |||
BRS |
3 | |||
BRS Affiliates |
3 | |||
BRS Associates |
3 | |||
BRS Partner |
3 | |||
CHP Affiliates |
3 | |||
CHP Associates |
3 | |||
CHP IV |
3 | |||
CHP Partner |
3 | |||
▇▇▇▇▇ |
1 | |||
Common Stock |
1 | |||
Company |
1 | |||
Confidential Information |
6 | |||
Exchange Act |
3 | |||
Fair Market Value Price |
9 | |||
Fast-Casual |
15 | |||
Founders Securities |
15 | |||
Founding Investors |
1 | |||
Full Service |
15 | |||
Holdings |
1 | |||
Investor |
1 | |||
Investors |
1 | |||
Merger |
1 | |||
Merger Agreement |
1 | |||
Merger Sub |
1 | |||
Permitted Transferee |
3 | |||
Person |
15 | |||
Preemptive Notice |
7 | |||
Preemptive Reply |
7 | |||
Preferred Stock |
1 | |||
Proffered Valuation |
10 | |||
Public Offering |
15 | |||
Purchase Option |
9 | |||
Qualified Investors |
7 | |||
Registration Rights Agreement |
16 | |||
Restricted Purchaser |
16 | |||
▇▇▇▇ |
1 | |||
Sale Notice |
8 |
-iv-
Sale of the Company |
16 | |||
SEC Reports |
5 | |||
Securities |
1 | |||
Securities Act |
2 | |||
Special Registration Statement |
16 | |||
Subsidiaries |
16 | |||
Surviving Corporation |
1 | |||
Transfer |
2 | |||
Transfer Date |
9 | |||
Unit Offering |
16 |
-v-
THIS IS A SECURITIES HOLDERS AGREEMENT, dated as of June 29, 2006 (the “Agreement”),
by and among Bravo Development, Inc., an Ohio corporation (the “Company”), Bravo
Development Holdings LLC, a Delaware limited liability company (“Holdings”), ▇▇▇▇▇ ▇.
▇▇▇▇▇, III (“▇▇▇▇”), ▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”), and the other individuals designated
as Founding Investors on the signature pages hereto (collectively with ▇▇▇▇ and ▇▇▇▇▇, the
“Founding Investors”). Holdings, each of the Founding Investors and any other investor in
the Company who becomes a party to or agrees to be bound by this Agreement are sometimes referred
to herein individually as an “Investor” and collectively as the “Investors.”
Background
A. This Agreement is being entered into in connection with the consummation of the
transactions contemplated by the Agreement and Plan of Merger, dated as of June 2, 2006 (the
“Merger Agreement”), by and among Holdings, BDI Acquisition Corp., an Ohio corporation and
wholly-owned subsidiary of Holdings (“Merger Sub”), the Company and the other parties
thereto, pursuant to which Merger Sub has been merged with and into the Company (the
“Merger”) and the Company, as the surviving corporation of the Merger (the “Surviving
Corporation”), has become a majority owned subsidiary of Holdings.
B. Each of the Investors is the owner of (i) the number of shares of the Company’s Series A
14% Cumulative Compounding Preferred Stock, par value $.001 per share (the “Preferred
Stock”), and (ii) the number of shares of the Company’s Common Stock, par value $.001 per share
(the “Common Stock”), in each case as set forth opposite such Investor’s name on
Schedule I hereto.
C. The Investors, the Company and the other parties hereto wish to set forth herein certain
agreements regarding their future relationships and their rights and obligations with respect to
Securities of the Company.
D. As used herein, the term “Securities” shall mean Common Stock, Preferred Stock, and
any other shares of capital stock of the Company, and any securities convertible into or
exchangeable for such capital stock, and any options (including any options now or hereafter issued
to Investors), warrants or other rights to acquire such capital stock or securities, now or
hereafter held by any party hereto, including all other securities of the Company (or a successor
to the Company) received on account of ownership of Common Stock or Preferred Stock, including all
securities issued in connection with any merger, consolidation, stock dividend, stock distribution,
stock split, reverse stock split, stock combination, recapitalization, reclassification,
subdivision, conversion or similar transaction in respect thereof.
Terms
In consideration of the mutual covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
RESTRICTIONS ON TRANSFER OF SECURITIES
1.1. Restrictions on Transfers of Securities. The following restrictions on Transfer
(as defined in Section 1.1(a) below) shall apply to all Securities owned by any Investor or
Permitted Transferee (as defined in Section 1.1(b) below), except a Permitted Transferee by virtue
of Section 1.1(b)(iv) hereof:
(a) Except as provided in the third paragraph of this clause (a), no Investor or Permitted
Transferee shall Transfer any Securities to a Restricted Purchaser unless (i) such Transfer is
approved in advance in writing by the holders of a majority of the outstanding shares of Common
Stock and (ii) such Transfer complies with the provisions of this Section 1.1, and, in addition, in
the case of Founders Securities, Article III of this Agreement. Any purported Transfer in
violation of this Agreement shall be null and void and of no force and effect, and the purported
transferee shall have no rights or privileges in or with respect to the Company. As used herein,
“Transfer” includes the making of any sale, exchange, assignment, hypothecation, gift,
security interest, pledge or other encumbrance, or any contract therefor, any voting trust or other
agreement or arrangement with respect to the transfer or grant of voting rights or any other
beneficial interest in any of the Securities, the creation of any other claim thereto or any other
transfer or disposition whatsoever, whether voluntary or involuntary, affecting the right, title,
interest or possession in or to such Securities.
Prior to any proposed Transfer of any Securities, the holder thereof shall give written notice
to the Company describing the manner and circumstances of the proposed Transfer, together with, if
reasonably requested by the Company, a written opinion of legal counsel, addressed to the Company
and the transfer agent for the Company’s equity securities, if other than the Company, and
reasonably satisfactory in form and substance to the Company, to the effect that the proposed
Transfer of the Securities may be effected without registration under the Securities Act of 1933,
as amended (the “Securities Act”). Each certificate evidencing the Securities transferred
shall bear the legends set forth in Section 1.2 hereof, except that such certificate shall not bear
the legend contained in the first paragraph of Section 1.2 hereof if the opinion of counsel
referred to above is to the further effect that such legend is not required in order to establish
compliance with any provision of the Securities Act.
Nothing in this Section 1.1(a) shall prevent or restrict the Transfer, free of any
restrictions under this Agreement, of Securities by an Investor or a Permitted Transferee to one or
more of its Permitted Transferees or to the Company; provided, however, that (i) no
Person (other than a Permitted Transferee by virtue of Section 1.1(b)(iv) hereof) shall be a
Permitted Transferee unless such transferee executes and delivers a joinder to this Agreement in
the form attached hereto as Exhibit A and (ii) no Transfer shall be effected except in
compliance with the registration requirements of the Securities Act and any applicable state
securities laws or pursuant to an available exemption therefrom.
2
(b) As used herein, “Permitted Transferee” shall mean:
(i) in the case of any Investor or Permitted Transferee who is a natural person, any spouse,
lineal descendant (natural or adopted), sibling or parent of such person, any trust, the
beneficiaries of which, or any charitable trust, the grantor of which, or any corporation, limited
liability company or partnership, the stockholders, members or general and limited partners of
which, include only such individual person or any spouse, lineal descendant (natural or adopted),
sibling or parent of such person, or any combination of the foregoing;
(ii) in the case of any Investor or Permitted Transferee who is a natural person, the heirs,
executors, administrators or personal representatives upon the death of such person or upon the
incompetency or disability of such person for purposes of the protection and management of such
person’s assets;
(iii) in the case of Holdings:
(A) (I) Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co. II, L.P., a Delaware limited partnership
(“BRS”), (II) any general partner of BRS (a “BRS Partner”) and any corporation,
partnership or other entity that is an Affiliate (as hereinafter defined) of BRS or any BRS Partner
(collectively, “BRS Affiliates”), (III) any present or former managing director, director,
general partner, limited partner, officer or employee of BRS, a BRS Partner or any BRS Affiliate,
or any spouse or lineal descendant (natural or adopted), sibling or parent of any of the foregoing
persons in this clause (III) or any heir, executor, administrator, testamentary trustee, legatee or
beneficiary of any of the foregoing persons described in this clause (III) (provided that no BRS
Affiliate that becomes such an entity primarily for the purpose of effecting a transfer of
Securities shall be considered a Permitted Transferee) (collectively, “BRS Associates”),
and (IV) any trust, the beneficiaries of which, or any charitable trust, the grantor of which, or
any corporation, limited liability company or partnership, the stockholders, members or general and
limited partners of which, include only BRS, BRS Partners, BRS Affiliates, or BRS Associates;
provided, however, that prior to the Company’s initial Public Offering, no limited
partner of BRS, BRS Partner or BRS Affiliate shall constitute a Permitted Transferee to the extent
that a Transfer of Securities to such Person would cause the Company to be subject to registration
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”);
(B)(I) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P., a Delaware limited partnership (“CHP IV”),
(II) any general partner or managing member of CHP IV (a “CHP Partner”) and any
corporation, partnership or other entity that is an Affiliate (as hereinafter defined) of CHP IV or
any CHP Partner (collectively, “CHP Affiliates”), (III) any present or former managing
director, director, general partner, limited partner, member, officer or employee of CHP IV, a CHP
Partner or any CHP Affiliate, or any spouse or lineal descendant (natural or adopted), sibling or
parent of any of the foregoing persons in this clause (III) or any heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the foregoing persons described in this
clause (III) (provided that no CHP Affiliate that becomes such an entity primarily for the purpose
of effecting a transfer of Securities shall be considered a Permitted Transferee) (collectively,
“CHP Associates”), and (IV) any trust, the beneficiaries of which, or
3
any charitable trust, the grantor of which, or any corporation, limited liability company or
partnership, the stockholders, members or general and limited partners of which, include only CHP
IV, CHP Partners, CHP Affiliates, or CHP Associates; provided, however, that prior
to the Company’s initial Public Offering, no limited partner of CHP IV, CHP Partner, or CHP
Affiliate shall constitute a Permitted Transferee to the extent that a Transfer of Securities to
such Person would cause the Company to be subject to registration under Section 12(g) of the
Exchange Act.
(iv) in the case of any Investor or Permitted Transferee, any Person if such Person takes such
Securities pursuant to a sale in connection with a Public Offering or following a Public Offering
in open market transactions or under Rule 144 under the Securities Act.
1.2. Legend. Any certificates representing Securities shall bear the following legend
(in addition to any other legend required under applicable law):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE DELIVERY TO
THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE TERMS
AND CONDITIONS OF A SECURITIES HOLDERS AGREEMENT BY AND AMONG THE COMPANY
AND THE HOLDERS SPECIFIED THEREIN, AS AMENDED FROM TIME TO TIME (THE
“SECURITIES HOLDERS AGREEMENT”), A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER, ASSIGNMENT OR OTHER
DISPOSITION OF THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND
THE SECURITIES ARE TRANSFERABLE OR OTHERWISE DISPOSABLE ONLY UPON PROOF OF
COMPLIANCE THEREWITH.
1.3. Notation. A notation will be made in the appropriate transfer records of the
Company with respect to the restrictions on transfer of the Securities referred to in this
Agreement.
4
ARTICLE II
OTHER COVENANTS AND REPRESENTATIONS
2.1. Financial Statements and Other Information.
(a) The Company shall deliver (or cause to be delivered) to Holdings (so long as Holdings or
its Permitted Transferees (other than Permitted Transferees pursuant to Section 1.1(b)(iv)) own any
Securities):
(i) as soon as available and in any event within 15 days after the end of each calendar month,
consolidated balance sheets of the Company and its Subsidiaries as of the end of such calendar
month, and consolidated statements of income and cash flows of the Company and its Subsidiaries for
the calendar month then ended, shown, in the case of the consolidated statements of income, in
comparison to the budgeted amounts for the same period and the same monthly period from the prior
fiscal year, prepared in conformity with United States generally accepted accounting principles
applied on a consistent basis, except as otherwise noted therein, and subject to the absence of
notes and to year-end adjustments;
(ii) as soon as available and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Company, consolidated balance sheets of the Company and
its Subsidiaries as of the end of such period, and consolidated statements of income and cash flows
of the Company and its Subsidiaries for the period then ended, shown, in the case of the
consolidated statements of income, in comparison to the budgeted amounts for the same period and
the same quarterly period from the prior fiscal year, prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis, except as otherwise noted
therein, and subject to the absence of notes and to year-end adjustments;
(iii) as soon as available and in any event within 90 days after the end of each fiscal year
of the Company, a consolidated and consolidating balance sheet of the Company and its Subsidiaries
as of the end of such year, and consolidated and consolidating statements of income and cash flows
of the Company and its Subsidiaries for the year then ended prepared in conformity with United
States generally accepted accounting principles applied on a consistent basis, except as otherwise
noted therein, together with an auditor’s report thereon of a firm of established national
reputation (such reports, the “Annual Reports”);
(iv) to the extent the Company is required by law or pursuant to the terms of any outstanding
indebtedness of the Company to prepare such reports, any annual reports, quarterly reports and
other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, actually prepared by
the Company as soon as such reports are generally available, together with any other documents the
Company are required to deliver to the holders of any such indebtedness (such reports, the “SEC
Reports”);
(v) prior to the beginning of each fiscal year, an annual budget which has been approved by
the Board of Directors of the Company, prepared on a month by month
5
basis for the Company and its Subsidiaries for such fiscal year (displaying anticipated
statements of income and capital spending), and promptly upon preparation thereof any other
significant budgets prepared by the Company, and any revisions of such annual or other budgets; and
(vi) such other documents, reports, financial data and other information as Holdings may
reasonably request and which the Company can provide without incurring any unreasonable costs.
(b) The Company shall concurrently deliver (or cause to be delivered) to each then-current
Investor a copy of any Annual Report or SEC Report that is delivered to Holdings and/or its
Permitted Transferees pursuant to Section 2.1(a).
(c) Inspection and Access. The Company shall permit any authorized representatives
designated by Holdings to visit and inspect any of the properties of the Company and its
Subsidiaries, including its and their books of account (and to make copies and take extracts
therefrom), and to discuss its and their affairs, finances and accounts with its and their officers
and their current and prior independent public accountants (and by this provision the Company
authorizes such accountants to discuss with such representatives the affairs, finances and accounts
of the Company and its Subsidiaries, whether or not a representative of the Company is present),
all at such reasonable times and as often as such party may reasonably request.
(d) Confidentiality. No Investor or Permitted Transferee shall (i) use or exploit in
any manner the Confidential Information of the Company for themselves or any Person other than the
Company or its subsidiaries, (ii) remove any Confidential Information, or any reproduction thereof,
from the possession or control of the Company, or (iii) treat Confidential Information otherwise
than in a confidential manner. For purposes of this Agreement, “Confidential Information
means confidential information relating to the Company, other than any information that is in the
public domain through no act or omission of any Investor or Permitted Transferee in violation of
this Agreement or which such Investor or Permitted Transferee is authorized by the Company to
disclose, consisting specifically of writings, reports, lists, software or computer programs
containing or reflecting any of the following: (1) recipes for the Company’s menu items, (2)
financial reports, (3) operation and training manuals, (4) business plans (including without
limitation plans for real estate acquisitions and expansions) and (5) agreements and arrangements
with suppliers. The obligation of an Investor or Permitted Transferee under this Section 2.6 with
respect to any particular item of Confidential Information shall expire on the later of the four
year anniversary of the date hereof or the two year anniversary of the receipt of such Confidential
Information.
2.2. Preemptive Rights. (a) Except for the issuance of Securities by the Company (i)
pursuant to a Public Offering, (ii) as consideration for the acquisition of all or any substantial
portion of the assets or all or any portion of the capital stock of any Person or that are
otherwise issued in connection with any merger or other business combination that is approved by
the Company’s board of directors, (iii) in any transaction in respect of a Security that is
available on the same terms to all holders of Securities on a pro rata basis, (iv) pursuant to an
incentive
6
compensation plan or other management stock option plan approved by the Company’s board of
directors, (v) to any debt financing sources of the Company or any of its Subsidiaries in
connection with a so-called “equity-kicker” (so long as such debt financing is approved by the
Company’s board of directors), or (vi) as a dividend on the outstanding Common Stock or Preferred
Stock, if, so long as the Company has not consummated a Public Offering, the Company sells any
Securities, the Company will offer to sell to each of the Qualified Investors (as defined below) a
pro rata portion of the number of such Securities issued equal to the percentage determined by
dividing (x) the number of shares of Common Stock held by such Qualified Investor on a
fully-diluted basis, by (y) the number of shares of Common Stock of the Company then outstanding on
a fully-diluted basis. Each Qualified Investor will be entitled to purchase all or part of such
Securities at the same price and on the same terms as such Securities are sold by the Company
pursuant to this Section 2.2. As used in this Section 2.2, “Qualified Investors” shall
mean any Investor that qualifies as an Accredited Investor (as such term is defined under Rule 501
promulgated by the Securities and Exchange Commission under the Securities Act).
(b) The Company will cause to be given to each of the Investors a written notice setting forth
the terms and conditions upon which such Investor may, if such Investor is a Qualified Investor,
purchase Securities from the Company pursuant to this Section 2.2 (the “Preemptive
Notice”). After receiving a Preemptive Notice, a Qualified Investor may agree to purchase the
Securities offered to such Qualified Investor by the Company pursuant to this Section 2.2, on the
date specified by the Company in the Preemptive Notice, by delivery of a written notice (together
with a certification and, if requested by the Company, supporting documentation, each in a form and
of a nature reasonably requested by the Company, that such Investor is a Qualified Investor) to the
Company within 20 days (or, in the case of any issuance of Securities with respect to which
Holdings has waived its rights to purchase any Securities pursuant to this Section 2.4, and such
irrevocable waiver is disclosed in the Preemptive Notice, 10 days) of the date the Company
delivered or caused to be delivered the Preemptive Notice to the Qualified Investor (the
“Preemptive Reply”).
2.3. Corporate Opportunity. To the fullest extent permitted by any applicable law,
the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with
respect to Holdings, BRS or any BRS Affiliates or CHP IV or any CHP Affiliates or their
representatives (including any directors of the Company designated by such Persons). In
particular, (a) Holdings, BRS, CHP IV and their respective Affiliates shall have the right to
engage in business activities, whether or not in competition with the Company or its Subsidiaries
or the Company’s or its Subsidiaries’ business activities, without consulting any other Investor,
and (b) none of Holdings, BRS or CHP IV shall have any obligation to any other Investor with
respect to any opportunity to acquire property or make investments at any time. The foregoing
provision (i) does not permit fraud or intentional misrepresentation, (ii) does not supersede any
other obligations under this Agreement and (iii) is not intended to change or alter a director’s
fiduciary duties to the Company except as specifically set forth herein.
7
ARTICLE III
RIGHT OF FIRST REFUSAL AND INVOLUNTARY TRANSFERS
3.1. Right of First Refusal. Subject to compliance with the other restrictions on
Transfer contained herein, in the event that, on or prior to the Company’s initial Public Offering,
any Founding Investor proposes to sell any or all of such Founding Investor’s Founders Securities
pursuant to a bona fide written offer from an unaffiliated third party (other than a Permitted
Transferee), the Founding Investor will first offer to sell such Founders Securities to the Company
or its designee pursuant to this Section 3.1.
Such Founding Investor shall deliver a written notice of any such bona fide offer (a “Sale
Notice”) to the Company describing in reasonable detail the Founders Securities proposed to be
sold, the name of the transferee, the purchase price and all other material terms of the proposed
Transfer. Upon receipt of the Sale Notice, the Company, or one or more designee(s) selected by a
majority of the members of the Board of Directors of the Company, shall have the right and option
to purchase all, but not less than all, of the Founders Securities proposed to be sold by the
Founding Investor at the price and on the terms of the proposed Transfer set forth in the Sale
Notice. Within 30 days after receipt of the Sale Notice, the Company shall notify such Founding
Investor whether or not it or its designee(s) wishes to purchase all of the offered Founders
Securities. In any case where non-fungible property such as real estate constitutes part of the
purchase price included in the bona fide offer or where any aspect of the terms of such offer
depend on the unique attributes of the proposed transferee or otherwise cannot be precisely and
reasonably duplicated by someone other than such transferee, purchases by the Company or its
designee(s) shall be made on terms that constitute the reasonable economic equivalent of the price
and terms of such bona fide offer. If the Company or its designee(s) elects to purchase the
offered Founders Securities, the closing of the purchase and sale of such Founders Securities shall
be held at the place and on the date established by the buyer in its notice to such Founding
Investor in response to the Sale Notice, which in no event shall be less than 10 days or more than
30 days from the date of such notice.
In the event that the Company or its designee does not elect to purchase all the offered
Founders Securities, such Founding Investor may, subject to the other provisions of this Agreement,
sell the offered Founders Securities to the transferee specified in the Sale Notice at a price no
less than the price specified in the Sale Notice and on other terms no more favorable to the
transferee(s) thereof than specified in the Sale Notice during the 180-day period immediately
following the last date on which the Company or its designee could have elected to purchase the
offered Founders Securities; provided, however, that no such sale shall be made
unless the transferee executes and delivers a joinder to this Agreement in the form attached hereto
as Exhibit A. Any such Founders Securities not transferred within such 180-day period will
be subject to the provisions of this Section 3.1 upon subsequent Transfer.
3.2. Involuntary Transfers.
8
(a) In the event that the Founders Securities owned by any Founding Investor shall be subject
to sale or other Transfer (the date of such sale or transfer shall hereinafter be referred to as
the “Transfer Date”) by reason of (i) bankruptcy or insolvency proceedings, whether
voluntary or involuntary, or (ii) distraint, levy, execution or other involuntary Transfer, then
such Founding Investor shall give the Company written notice thereof promptly upon the occurrence
of such event stating the terms of such proposed Transfer, the identity of the proposed transferee,
the price or other consideration, if readily determinable, for which the Founders Securities are
proposed to be transferred, and the number of Founders Securities to be transferred. After its
receipt of such notice or, failing such receipt, after the Company otherwise obtains actual
knowledge of such a proposed Transfer, the Company or one or more designee(s) selected by a
majority of the members of the Board of Directors of the Company shall have the right and option (a
“Purchase Option”) to purchase any or all of such Founders Securities which right shall be
exercised by written notice given by the Company or its designee(s) to such proposed transferor
within 60 days following the Company’s receipt of such notice or, failing such receipt, the
Company’s obtaining actual knowledge of such proposed Transfer. Any purchase pursuant to this
Section 3.2 shall be at the price and on the terms applicable to such proposed Transfer. If the
nature of the event giving rise to such involuntary Transfer is such that no readily determinable
consideration is to be paid for the Transfer of the Founders Securities, the price to be paid per
share by the buyer shall be the Fair Market Value Price per share for such Founders Securities as
of the date of such proposed Transfer. The closing of the purchase and sale of such Founders
Securities shall be held at the place and the date to be established by the buyer, which shall be
no earlier than 10 days after the date such notice was sent by the Company or its designee(s) and
no later than the later of (A) 30 days after the date such notice was sent and (B) five business
days after the Fair Market Value Price is finally determined as set forth in Section 3.2(b). At
such closing, such Founding Investor shall deliver the certificates evidencing the number of
Founders Securities to be purchased by the buyer, accompanied by stock powers duly endorsed in
blank or duly executed instruments of transfer, and any other documents that are necessary to
transfer to the buyer good title to such of the securities to be transferred, free and clear of all
pledges, security interests, liens, charges, encumbrances, equities, claims and options of whatever
nature other than those imposed under this Agreement, and concurrently with such delivery, the
buyer shall deliver to such Founding Investor the full amount of the purchase price for such
Founders Securities in cash by certified or bank cashier’s check.
(b) Fair Market Value Price. The “Fair Market Value Price” for each share of
Common Stock or Preferred Stock means, the price that fairly reflects the going concern value of
the Company as a whole based on such valuation methodologies as are customarily applied to
restaurant companies, with no minority or lack of liquidity discounts and assuming a willing buyer
and a willing seller under no compulsion to act and both having reasonable knowledge of all
relevant facts. In the case of any security convertible into or exchangeable for Common Stock or
Preferred Stock or any option, warrant or other right to purchase Common Stock or Preferred Stock,
the Fair Market Value Price for such security shall be based upon the Fair Market Value Price of
the underlying Common Stock or Preferred Stock, after taking into account the conversion, exchange
or exercise price applying to such security and any applicable tax obligations of the holder in
connection with such conversion, exercise or exchange. If the
9
Company or its designee(s) has exercised or is considering exercising a Purchase Option, then
within 30 days after the Transfer Date, the Company or its designee(s), as the case may be, shall
prepare and deliver to the Founding Investor its calculation of the Fair Market Value Price per
share (the “Proffered Valuation”). If the Founding Investor does not agree with the
Company’s or its designee(s)’s Proferred Valuation, then the Founding Investor shall prepare his
own Proffered Valuation, a copy of which shall be delivered to the Company or its designee(s)
within 20 days after delivery of the Company’s or its designee(s)’s Proffered Valuation, as the
case may be. If the Company or its designee(s) and the Founding Investor are unable to agree on
the Fair Market Value Price per share within ten days after delivery of the Founding Investor’s
Proffered Valuation, the parties shall then select a mutually acceptable investment banking or
other firm to choose either the Company’s or its designee(s)’s Proffered Valuation, or the Founding
Investor’s Proffered Valuation. Such firm (x) shall not be an Affiliate of the Company, Holdings,
Holdings’ equityholders or the Founding Investor; and (y) shall have demonstrable skills and
expertise in the valuation of equity securities in relevant industries. If the parties are unable
to agree on a mutually acceptable investment banking or other firm within ten days after delivery
of the Founding Investor’s Proffered Valuation, each party shall select its own investment banking
or other firm and the two selected firms shall select a mutually acceptable investment banking or
other firm (meeting the criteria set forth in the preceding sentence) for the purpose of
determining the Fair Market Value Price per share. If either party fails to select its own
investment banking or other firm, which is to select the determining firm, within five days after
the expiration of such ten day period, the other party’s selected firm shall act as the determining
firm. The parties shall instruct the selected firm to select, within 20 days thereafter, such of
the two Proffered Valuations as more accurately reflects the Fair Market Value Price per share, and
each of the Company or its designee(s) and the Founding Investor hereby agrees to be bound by such
decision. Except as provided below, the fees and expenses of the determining firm shall be shared
equally between the Company or its designee(s), on the one hand, and the Founding Investor, on the
other hand. In the event of such negotiation or a determination of the Fair Market Value Price by
the selected firm, the Company or its designee(s) shall have the right to revoke any notice of
exercise of the Purchase Option previously given by such party, by written notice delivered to the
Founding Investor not later than five business days after such determination; provided,
however, that the fees and expenses of the selected firm shall be borne solely by the
Company or its designee(s) in the event the Company or its designee(s) revokes any such notice of
exercise of the Purchase Option. Except as provided above, the Company or its designee(s) and the
Founding Investor shall be responsible for their own fees and expenses, including the fees and
expenses of their respective counsel and, if applicable, their own investment banking or other
firm.
(c) If the Company or its designee(s) delivers a Proferred Valuation to a Founding Investor in
connection with the determination of the Fair Market Value Price as set forth in Section 3.2(b),
the Company shall give such Founding Investor and his or her agents and advisors, upon reasonable
notice to the Company, reasonable access, during normal business hours, to the books and records of
the Company and the Subsidiaries for the purpose of calculating the Fair Market Value Price as
provided in Section 3.2(b).
10
3.3. Purchaser Representative. If the Company or any Investor enters into any
negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by
the Securities and Exchange Commission under the Securities Act may be available with respect to
such negotiation or transaction (including a merger, consolidation or other reorganization), each
of the Founding Investors will, at the request of the Company, appoint a purchaser representative
(as such term is defined in Rule 501(h) promulgated by the Securities and Exchange Commission under
the Securities Act) reasonably acceptable to the Company. The Company shall propose a reasonable
purchaser representative; if a Founding Investor appoints such purchaser representative designated
by the Company as his or her purchaser representative, the Company will pay the fees of such
purchaser representative. If a Founding Investor declines to appoint the purchaser representative
designated by the Company, such Founding Investor will appoint another purchaser representative
(reasonably acceptable to the Company), and such Founding Investor will be responsible for the fees
of the purchaser representative so appointed.
ARTICLE IV
MISCELLANEOUS
4.1. Amendment and Modification. This Agreement may be amended or modified, or any
provision hereof may be waived, provided that such amendment, modification or waiver is set forth
in a writing executed by the Company and the holders of a majority of the outstanding shares of
Common Stock; provided, however, that any amendment of this Agreement which
adversely affects any Investor in a manner different from other Investors (other than due to the
different economic impact that naturally results from the ownership of a different number of
shares) shall require the prior written consent of such Investor. No course of dealing between or
among any Persons having any interest in this Agreement will be deemed effective to modify, amend
or discharge any part of this Agreement or any rights or obligations of any Person under or by
reason of this Agreement.
4.2. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors and permitted assigns and executors, administrators
and heirs of each party hereto. Except as contemplated hereby in connection with Transfers of
Securities, this Agreement, and any rights or obligations existing hereunder, may not be assigned
or otherwise transferred by any party without the prior written consent of the other parties
hereto.
4.3. Severability. In the event that any provision of this Agreement or the
application of any provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remaining provisions shall remain in full force and
effect unless deletion of such provision causes this Agreement to become materially adverse to any
party, in which event the parties shall use reasonable efforts to arrive at an accommodation which
best preserves for the parties the benefits and obligations of the offending provision.
4.4. Notices. All notices provided for or permitted hereunder shall be made in
writing by hand-delivery, registered or certified first-class mail, fax or reputable courier
guaranteeing
11
overnight delivery to the other parties at the following addresses (or at such other address
as shall be given in writing by any party to the others):
If to the Company, to:
Bravo Development, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bravo Development, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
Dechert LLP
▇▇▇▇ Centre
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ Centre
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Holdings, to:
▇/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
Dechert LLP
▇▇▇▇ Centre
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ Centre
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to any of the Founding Investors, to such Founding Investor’s address as set forth on the
signature page hereto or such other address as may be specified from time to time in writing to the
Company by any Founding Investor.
All such notices shall be deemed to have been duly given: when delivered by hand, if personally
delivered; four business days after being deposited in the mail, postage prepaid, if mailed; when
confirmation of transmission is received, if faxed during normal business hours (or, if not faxed
during normal business hours, the next business day after confirmation of transmission); and on the
next business day, if timely delivered to a reputable courier guaranteeing overnight delivery.
4.5. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without giving effect to principles of conflicts
of law.
4.6. Headings. The headings preceding the text of the sections and subsections of
this Agreement are for convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or effect.
4.7. Counterparts. This Agreement may be executed in two or more counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original, and all of which taken together shall constitute one and the same instrument.
4.8. Further Assurances. Each party shall cooperate and take such action as may be
reasonably requested by another party in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.
4.9. Termination. This Agreement shall terminate (i) on the written agreement of the
Investors who are parties hereto, (ii) when all the Investors except any one Investor no longer
hold any Securities or (iii) immediately after the consummation of a Sale of the Company.
4.10. Remedies. In the event of a breach or a threatened breach by any party to this
Agreement of its obligations under this Agreement, any party injured or to be injured by such
breach, in addition to being entitled to exercise all rights granted by law, including recovery of
13
damages, will be entitled to specific performance of its rights under this Agreement. The
parties agree that the provisions of this Agreement shall be specifically enforceable, it being
agreed by the parties that the remedy at law, including monetary damages, for breach of such
provision will be inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
4.11. Party No Longer Owning Securities. If a party hereto ceases to own any
Securities, such party will no longer be deemed to be an Investor or Founding Investor for purposes
of this Agreement.
4.12. No Effect on Employment. Nothing herein contained shall confer on any Founding
Investor the right to remain in the employ or service of the Company or any of its Subsidiaries or
Affiliates.
4.13. Pronouns. Whenever the context may require, any pronouns used herein shall be
deemed also to include the corresponding neuter, masculine or feminine forms.
4.14. Jurisdiction and Venue. ALL JUDICIAL PROCEEDINGS BROUGHT BY OR AGAINST THE
COMPANY OR THE INVESTORS WITH RESPECT TO THIS AGREEMENT, ANY OTHER AGREEMENT CONTEMPLATED HEREBY OR
ANY TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN NEW YORK COUNTY, NEW YORK. BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE COMPANY AND EACH INVESTOR ACCEPT FOR ITSELF AND HIMSELF AND IN CONNECTION WITH ITS OR HIS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. THE COMPANY AND EACH INVESTOR HEREBY WAIVE ANY CLAIM THAT SUCH JURISDICTION
IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
4.15. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
4.16. Entire Agreement. This Agreement sets forth the entire agreement and
understanding among the parties and supersedes all prior agreements and understandings, written or
oral, relating to the subject matter of this Agreement, it being understood the Investors are
entering into other agreements and instruments in connection with the consummation of the Merger,
including the Registration Rights Agreement.
14
4.17. Management Agreements. Each Investor will raise no objection to the
Company entering into a Management Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. and Bruckmann, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Co., Inc. in the form attached hereto as Exhibit B.
ARTICLE V
DEFINITIONS
DEFINITIONS
5.1. Definitions. For purposes of this Agreement:
(a) “Affiliate” means as to any Person, any other Person that directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As used in this
definition, “control” (including, with its correlative meanings, “controlled by” and “under common
control with”) shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise).
(b) “Fast-Casual” means a restaurant with walk up counter service (or limited table
service) comparable to a Chipotle Mexican Grill, Panera Bread, Sauce or ▇▇▇ ▇▇▇ restaurant.
(c) “Founders Securities” means the shares of Preferred Stock or Common Stock or other
Securities now or hereafter owned by a Founding Investor, and all other securities of the Company
(or a successor to the Company) received on account of ownership of the Founders Securities,
including any and all founders securities issued in connection with any merger, consolidation,
stock dividend, stock distribution, stock split, reverse stock split, stock combination,
recapitalization, reclassification, subdivision, conversion or similar transaction in respect
thereof.
(d) “Full Service” means a restaurant in which the patron orders and is served at the
patron’s table (a sit down full table service restaurant).
(e) “Person” means an individual, a partnership, a partner, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency or political
subdivision thereof.
(f) “Public Offering” means a successfully completed firm commitment underwritten
public offering pursuant to an effective registration statement under the Securities Act (other
than a Special Registration Statement) in respect of the offer and sale of shares of Common Stock
for the account of the Company resulting in aggregate net proceeds to the Company and any
stockholder selling shares of Common Stock in such offering of not less than $50,000,000.
15
(g) “Registration Rights Agreement” means that certain Registration Rights Agreement,
dated as of the date hereof, by and among the Company, each of the Investors and the other parties
thereto, as in effect from time to time.
(h) “Restricted Purchaser” means a Person that, directly or indirectly, (i) develops
and establishes or operates (A) Italian themed Full Service or Fast-Casual dining restaurants or
(B) Full Service or Fast-Casual dining restaurants at which more than twenty-five percent (25%) of
the menu items are Italian style dishes or (ii) supplies the Company with more than $1,000,000 in
goods and services per year.
(i) “Sale of the Company” means the sale of the Company, including in one or more
series of related transactions, to another party or group of parties (including a transaction to
recapitalize or form a holding company of the Company) pursuant to which such party or parties
acquire (i) equity securities of the Company constituting a majority of the Common Stock of the
Company (whether by merger, consolidation, sale or transfer of the Company’s outstanding equity
securities, or otherwise) or (ii) all or substantially all of the Company’s consolidated assets.
(j) “Special Registration Statement” means (i) a registration statement on Form S-8 or
S-4 or any similar or successor form or any other registration statement relating to an exchange
offer or an offering of securities solely to the Company’s employees or security holders or to
security holders of a corporation or other entity being acquired by, or merged with, the Company or
(ii) a registration statement registering a Unit Offering.
(k) “Subsidiaries” means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof.
(l) “Unit Offering” means a public offering of a combination of debt and equity
securities of the Company in which (i) not more than 10% of the gross proceeds received from the
sale of such securities is attributed to such equity securities, and (ii) after giving effect to
such offering, the Company does not have a class of equity securities required to be registered
under the Exchange Act.
[SIGNATURE PAGES FOLLOW]
16
IN WITNESS WHEREOF, the parties hereto have executed this Securities Holders Agreement the day
and year first above written.
| BRAVO DEVELOPMENT, INC. |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇, III | |||
| Title: | Chief Executive Officer | |||
| BRAVO DEVELOPMENT HOLDINGS LLC |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| FOUNDING INVESTORS: |
||||
| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III | ||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇, III | |||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| /s/ ▇▇▇▇ ▇▇▇▇ | ||||
| Name: | ▇▇▇▇ ▇▇▇▇ | |||
| The undersigned hereby agree to be parties to this Agreement with respect to, and to have and assume the rights and obligations under, Section 2.3 hereof. |
| BRUCKMANN, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & CO. II, L.P. |
||||
| By: | BRSE L.L.C., its general partner | |||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS IV, L.P. |
||||
| By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., as Investment Manager | |||
| By: | ▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
Schedule I
Investors and Securities Owned
| Number of Shares of | Number of Shares of Preferred | |||||||
| Investor | Common Stock Owned | Stock Owned | ||||||
Bravo Development Holdings LLC |
841,050 | 47,659.50 | ||||||
▇▇▇▇▇ ▇. ▇▇▇▇▇, III |
97,125 | 5,503.75 | ||||||
▇▇▇▇ ▇. ▇▇▇▇▇ |
36,975 | 2,095.25 | ||||||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
14,700 | 833.00 | ||||||
▇▇▇▇ ▇▇▇▇ |
2,250 | 127.50 | ||||||
Total |
992,100 | 56,219 | ||||||
EXHIBIT A
FORM OF JOINDER AGREEMENT
TO THE SECURITIES HOLDERS AGREEMENT
TO THE SECURITIES HOLDERS AGREEMENT
THIS JOINDER to the Securities Holders Agreement, dated as of , 2006, by and
among Bravo Development, Inc., an Ohio corporation (the “Company”), and the other parties
thereto (the “Securities Holders Agreement”) is made and entered into as of ,
200___ by and between the Company and the undersigned “Holder” set forth on the signature
page hereto (this “Joinder”). Capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Securities Holders Agreement.
WHEREAS, the Holder has acquired certain Securities and the Securities Holders Agreement
requires the Holder to become a party to the Securities Holders Agreement and the Holder agrees to
do so in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Joinder hereby agree as follows:
(a) Agreement to be Bound. Holder hereby agrees that upon execution of this Joinder,
it shall become a party to the Securities Holders Agreement and shall be fully bound by, and
subject to, all of the covenants, terms and conditions of the Securities Holders Agreement as
though an original party thereto and shall be deemed an Investor [and Founding
Investor]1 for all purposes thereof. In addition, Holder hereby agrees that all
Securities held by Holder shall be deemed Securities for all purposes of the Securities Holders
Agreement.
(b) Successors and Assigns. Except as otherwise provided herein, this Joinder shall
bind and inure to the benefit of and be enforceable by the Company and its successors and assigns
and Holder and any subsequent holders of Securities and the respective successors and assigns of
each of them, so long as they hold any Securities.
(c) Counterparts. This Agreement may be executed in separate counterparts each of
which shall be an original and all of which taken together shall constitute one and the same
agreement.
(d) Notices. For purposes of Section 5.4 of the Securities Holders Agreement,
all notices, demands or other communications to the Holder shall be directed to:
| [Name] | ||
| [Address] | ||
| [Facsimile Number] |
| 1 | To be included where the Person transferring the Securities to the Holder is or was a Founding Investor. |
EXHIBIT A
(e) Governing Law. All issues and questions concerning the application, construction,
validity, interpretation and enforcement of this Joinder shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to principles of conflicts
of law.
(f) Jurisdiction and Venue. ALL JUDICIAL PROCEEDINGS BROUGHT BY OR AGAINST THE
COMPANY OR THE HOLDER WITH RESPECT TO THIS JOINDER, ANY OTHER AGREEMENT CONTEMPLATED HEREBY OR ANY
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN NEW YORK COUNTY, NEW YORK. BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE COMPANY AND THE HOLDER ACCEPT FOR ITSELF AND HIMSELF AND IN CONNECTION WITH ITS OR HIS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS JOINDER. THE COMPANY AND THE HOLDER HEREBY WAIVE ANY CLAIM THAT SUCH JURISDICTION IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
(g) Waiver of Jury Trial. EACH PARTY TO THIS JOINDER HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS JOINDER OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
(h) Descriptive Headings. The descriptive headings of this Joinder are inserted for
convenience only and do not constitute a part of this Joinder.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as of the date first above
written.
| BRAVO DEVELOPMENT, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [HOLDER] |
||||
| By: | ||||
- i -
EXHIBIT B
FORM OF MANAGEMENT AGREEMENT
- i -