Securities Holders Agreement - California Pizza Kitchen Inc., Bruckmann, Rosser, Sherrill & Co. LP, Richard L. Rosenfield and Larry S. Flax, BCB Family Partners, NAZ Family Partners, Furman Selz SBIC, L.P. and BancBoston Investments Inc.
SECURITIES HOLDERS AGREEMENT
THIS IS A SECURITIES HOLDERS AGREEMENT, dated as of September 30, 1997
(the "Agreement"), by and among California Pizza Kitchen, Inc., a California
corporation (the "Company"), Bruckmann, Rosser, Sherrill & Co., L.P., a Delaware
limited partnership ("BRS"), the individuals and entities set forth on Exhibit A
hereto (the "Additional Investors"), and Richard L. Rosenfield and
Larry S. Flax, each of whom in their individual capacity and as Trustee under
the California Pizza Kitchen, Inc. Voting Trust Agreement, dated March 1, 1990,
as amended March 2, 1990 (the "Voting Trust Agreement"), and as Trustee of any
trust which is a beneficiary thereof, with respect to the shares of stock
subject to such trusts (the "Founding Investors"). BRS, the Additional Investors
and the Founding Investors are sometimes referred to hereinafter individually as
an "Investor" and collectively as the "Investors."
Background
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A. The Company has entered into an Agreement and Plan of Merger, dated
as of July 1, 1997, as amended by the First Amendment to Agreement and Plan of
Merger, dated as of September 9, 1997 (the "Merger Agreement"), pursuant to
which the Company has, among other things, amended its Articles of Incorporation
to amend the terms of the Class A Common Stock, par value $.01 per share
("Class A Common Stock"), and Class B Common Stock, par value $.01 per share
("Class B Common Stock" and, together with Class A Common Stock, the "Common
Stock"), of the Company.
B. Pursuant to the merger (the "Merger") contemplated under the Merger
Agreement, BRS and the Additional Investors have been issued a number of shares
of Class A Common Stock or Class B Common Stock, and the Founding Investors have
been issued a number of shares of Class A Common Stock equal, in the case of the
Founding Investors, on a percentage basis to the number of shares of Common
Stock of the Company owned by the Founding Investors prior to such Merger.
C. The Investors and the Company wish to set forth certain agreements
regarding their future relationships and their rights and obligations with
respect to the Securities.
D. As used herein, the term "Securities" means the Common Stock or any
other shares of capital stock of the Company, or any securities convertible into
or exchangeable for such capital stock, or any options, warrants or other rights
to acquire such capitals 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 the Common 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.
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Terms
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In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
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1.1 Representations and Warranties of the Company. The Company
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represents and warrants to, and covenants and agrees with, each of the Investors
as follows:
(a) The Company is a corporation validly existing and in good
standing under the laws of the State of California.
(b) The Company has full corporate power and corporate authority
to make, execute, deliver and perform this Agreement and to carry out all of the
transactions provided for herein.
(c) The Company has taken such corporate action as is necessary
or appropriate to enable it to perform its obligations hereunder, including, but
not limited to, the issuance and sale of the Securities issued by it prior
hereto, and this Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with the terms
hereof.
(d) As of the Closing under the Merger Agreement, the authorized
capital stock of the Company will consist of (i) 40,000,000 shares of Class A
Common Stock, of which the number of shares reflected in Exhibit A will be
issued and outstanding immediately after the Closing; (ii) 40,000,000 shares of
Class B Common Stock, of which the number of shares reflected in Exhibit A will
be issued and outstanding immediately after the Closing, and (iii) 40,000,000
shares of Preferred Stock, of which no shares will be issued and outstanding
immediately after the Closing. As of the Closing, except as set forth in
Schedule 1.1, there will be no rights, subscriptions, warrants, options,
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conversion rights, or agreements of any kind outstanding to purchase from the
Company, or otherwise require the Company to issue, any shares of capital stock
of the Company or securities or obligations of any kind convertible into or
exchangeable for any shares of capital stock of the Company; the Company will
not be subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock; and the shares of
Common Stock set forth on Exhibit A will constitute all of the outstanding
shares of the Company's capital stock.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF INVESTORS
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2.1 Representations, Warranties and Covenants of Each Investor. Each of
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the Investors severally represents and warrants to, and covenants and agrees
with, the Company that:
(a) Such Investor has full legal right, power and authority
(including the due authorization by all necessary corporate action) to enter
into this Agreement and to perform such Investor's obligations hereunder without
the need for the consent of any other person; and this Agreement has been duly
authorized, executed and delivered and constitutes the legal, valid and binding
obligation of such Investor enforceable against such Investor in accordance with
the terms hereof.
(b) In the case of BRS and any Additional Investor, the Securities
have been acquired by such Investor for investment, and not with a view to any
distribution thereof that would violate the Securities Act of 1933, as amended
(the "Securities Act"), or the applicable state securities laws of any state;
and such Investor will not distribute the Securities in violation of the
Securities Act or the applicable securities laws of any state.
(c) Such Investor understands that the Securities have not been
registered under the Securities Act or the securities laws of any state and must
be held indefinitely unless subsequently registered under the Securities Act and
any applicable state securities laws or unless an exemption from such
registration becomes or is available.
(d) Such Investor is financially able to hold the Securities for
long-term investment, believes that the nature and amount of the Securities
being purchased are consistent with such Investor's overall investment program
and financial position, and recognizes that there are substantial risks involved
in the purchase of the Securities.
(e) Such Investor confirms that (i) such Investor is familiar with
the business of the Company and its subsidiaries, (ii) such Investor has had the
opportunity to ask questions of the officers and directors of the Company and to
obtain (and that such Investor has received to its satisfaction) such
information about the business and financial condition of the Company and its
subsidiaries as it has reasonably requested, and (iii) such Investor, either
alone or with such Investor's representative (as defined in Rule 501(h)
promulgated under the Securities Act), if any, has such knowledge and experience
in financial and business matters that such Investor is capable of evaluating
the merits and risks of the prospective investment in the Securities.
2.2 Legend. The certificates representing the Securities shall bear the
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following legend in addition to any other legend required under applicable law:
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THESE SECURITIES 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
TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL, 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, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY. THE SALE, TRANSFER OR OTHER DISPOSITION OF
THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND THE
SECURITIES ARE TRANSFERABLE ONLY UPON PROOF OF COMPLIANCE THEREWITH.
2.3 Additional Investor Representations and Warranties. BRS
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and each Additional Investor severally represents and warrants to the
Company as to itself that:
(a) if an individual, such Additional Investor's residence,
business address and business and residence telephone numbers are as set forth
below his or her signature to this Agreement; and
(b) in formulating a decision to enter into this Agreement,
such Investor has relied solely upon an independent investigation of the
Company's and its subsidiaries' business and upon consultations with his or her
or its legal and financial advisers with respect to this Agreement and the
nature of his or her or its investment; and that in entering into this Agreement
no reliance was placed upon any representations or warranties other than those
contained in this Agreement.
2.4 Restrictions on Transfers of Securities.
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The following restrictions on Transfer shall apply to all Securities
owned by any Investor or Permitted Transferee (except a Permitted Transferee by
virtue of Section 2.4(b)(iv) hereof):
(a) No Investor or Permitted Transferee (except a Permitted
Transferee by virtue of Section 2.4(b)(iv) hereof) shall Transfer (other than in
connection with a redemption or purchase by the Company) any Securities unless
(i) such Transfer is to a person or entity approved in advance in writing by the
holders of at least fifty percent (50%) of the outstanding Common Stock then
held by the Investors (including shares held by the transferor) and (ii) such
Transfer complies with the provisions of Article III and this Section 2.4. 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
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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 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 accompanied by a written opinion of legal
counsel, addressed to the Company and the transfer agent, if other than the
Company, and reasonably satisfactory in form and substance to each addressee, to
the effect that the proposed Transfer of the Securities may be effected without
registration under the Securities Act and applicable state securities laws. Each
certificate evidencing the Securities transferred shall bear the legends set
forth in Section 2.2, except that such certificate shall not bear such legend 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 or applicable state securities laws.
Nothing in this Section 2.4(a) shall prevent 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 each such Investor or Permitted Transferee
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(except a Permitted Transferee by virtue of Section 2.4(b)(iv) hereof) shall
take such Securities subject to and be fully bound by the terms of this
Agreement applicable to it with the same effect as if it were a party hereto;
and provided, further, that (i) no entity or person (other than a Permitted
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Transferee by virtue of Section 2.4(b)(iv) hereof) shall be a Permitted
Transferee unless such transferee executes a joinder to this Agreement
satisfactory in form and substance to the Company which joinder states (A) that
such entity or person agrees to be fully bound by this Agreement as if it were a
party hereto and (B) with respect to any Permitted Transferee other than a
natural person, that such Permitted Transferee agrees to Transfer such
Securities to the Investor from whom such Permitted Transferee received such
Securities immediately prior to the occurrence of any event which would result
in such person no longer being a Permitted Transferee of such Investor, and (ii)
no Transfer shall be effected except in compliance with the registration
requirements of the Securities Act or pursuant to an available exemption
therefrom. Each Investor agrees to accept the Transfer of Securities to such
Investor at any time from a transferee of such Investor.
(b) As used herein, "Permitted Transferee" shall mean:
(i) in the case of any Investor or Permitted Transferee
who is a natural person, such Investor's or Permitted Transferee's spouse or
children or grandchildren (in each case, natural or adopted), any trust
established solely for such Investor's or Permitted Transferee's benefit or the
benefit of such Investor's or Permitted Transferee's spouse or children or
grandchildren (in each case, natural or adopted), or any corporation or
partnership in which the direct and beneficial owner of all of the equity
interest is such individual Investor or Permitted Transferee or such
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Investor's or Permitted Transferee's spouse or children or grandchildren (in
each case, natural or adopted) (or any trust for the benefit of such persons);
(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 Investor or Permitted Transferee or upon
the incompetency or disability of such Investor or Permitted Transferee for
purposes of the protection and management of such Investor's assets;
(iii) in the case of any Investor who is not a natural person
or Permitted Transferee who is not a natural person, any Affiliate (as
hereinafter defined) of such Investor;
(iv) in the case of any Investor or Permitted Transferee,
any person or other entity if such person or other entity 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;
(v) in the case of BRS or any Additional Investor which is
not a natural person, any of its employees, partners, officers or directors or
any corporation, partnership or other entity at least a majority of the equity
in which is held in the aggregate by such party, its employees, officers or
directors or any of their respective Affiliates; and
(vi) in the case of the Founding Investors, a person or
entity who is Transferred Securities in accordance with paragraph (d) below, or
any transfer to the beneficiaries of the Voting Trust Agreement upon a
termination of such agreement.
(c) As used herein, "Affiliate" means with respect to any person, a
corporation or other entity in which such person owns, directly or indirectly
through one or more intermediaries and has the power to vote, more than fifty
percent (50%) of the outstanding capital stock or other voting interests of such
corporation or entity; and "Public Offering" means a successfully completed firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act (other than (i) a Special Registration
Statement or (ii) a registration statement relating to a Unit Offering) 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 $30,000,000. A
"Special Registration Statement" means (i) a registration statement on Forms 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 used in connection with the
acquisition of the business of another person or entity or (ii) a registration
statement registering a Unit Offering. A "Unit Offering" shall mean 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
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such offering, the Company does not have a class of equity securities required
to be registered under the Securities Exchange Act of 1934, as amended.
(d) Notwithstanding Section 2.4(a) above, nothing in this
Agreement shall prevent a Transfer of Securities, free of the restrictions in
this Agreement, by either of the Founding Investors at any time after the first
anniversary of the Closing Date so long as (i) the Transfer is effected in
compliance with the registration requirements of the Securities Act or pursuant
to an available exemption therefrom, (ii) the transferee executes and delivers a
joinder to this Agreement satisfactory to the Company stating that such
transferee agrees to be bound by the provisions of this Agreement as if a party
hereto and (iii) unless such Transfer is a De Minimis Charitable Sale (as
defined below), the Transfer complies with the right of first refusal of the
Company on such Securities arising under the Assignment of Rights Agreement,
dated as of the date hereof, among PepsiCo, Inc., CPK Acquisition Corp.,
Richard L. Rosenfield, Larry S. Flax and the Company (the "Assignment
Agreement"). In addition, nothing in this Agreement shall prevent a Transfer of
Securities, free of the restrictions in this Agreement, by either of the
Founding Investors so long as (i) the sale is to an unaffiliated charitable
organization and the number of Securities sold, individually and in the
aggregate with other sales made by such Founding Investor pursuant to this
sentence, amounts to not more than 0.5% of the outstanding Securities of that
class (a "De Minimis Charitable Sale"), (ii) the Transfer is effected in
compliance with the registration requirements of the Securities Act or is
effected pursuant to an available exemption therefrom and (iii) the transferee
executes and delivers a joinder to this Agreement satisfactory to the Company
stating that such transferee agrees to be bound by the provisions of this
Agreement as if a party hereto.
(e) Notwithstanding Section 2.4(a) above, nothing in this
Agreement shall prevent a Transfer of Securities, free of the restrictions in
this Agreement, by any Investor in connection with the grant by such Investor of
any proxy to representatives of BRS, or the agreement by such Investor to vote
securities in accordance with the instructions of BRS, or the deposit by such
Investor of shares of Common Stock with a voting trust where the trustee or
trustees of such trust are representatives of BRS.
2.5 Notation. A notation will be made in the appropriate
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transfer records of the Company with respect to the restrictions on transfer of
the Securities referred to in this Agreement.
ARTICLE III
OTHER COVENANTS AND REPRESENTATIONS
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3.1 Financial Statements and Other Information. So long as
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BRS or any of the Founding Investors, as the case may be, owns any of the
Securities, the Company shall deliver to BRS or such Founding Investor:
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(a) 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 prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, except as otherwise noted therein, and subject to the absence of
footnotes and to year-end adjustments; and
(b) 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 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.
3.2 Sale of the Company.
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(a) So long as the Company has not consummated a Public
Offering, if BRS (so long as BRS and its Affiliates, officers, directors and
employees own in the aggregate at least forty percent (40%) of the outstanding
Common Stock of the Company) approves in writing the sale of the Company to an
unaffiliated person (whether by merger, consolidation, sale of all or
substantially all of its assets or sale of the outstanding capital stock) (an
"Approved Sale"), each Investor and Permitted Transferee will consent to, vote
for, and raise no objections against, and waive dissenters and appraisal rights
(if any) with respect to, the Approved Sale, and if the Approved Sale is
structured as a sale of stock, each Investor and such Permitted Transferee will
agree to sell and will be permitted to sell all of such Investor's and such
Permitted Transferee's Common Stock or other Securities on the terms and
conditions approved by BRS; provided, however, that neither of the Founding
Investors (nor their Permitted Transferees) shall be subject to the foregoing
obligations in respect of an Approved Sale until the first anniversary of the
Closing Date. Each Investor and such Permitted Transferee will take all
necessary and desirable actions in connection with the consummation of an
Approved Sale.
(b) The obligations of each of the Investors with respect
to an Approved Sale are subject to the satisfaction of the conditions that: (i)
upon the consummation of the Approved Sale all of the Investors and Permitted
Transferees will receive the same form and amount of consideration per share of
Common Stock, or if any holder of Common Stock is given an option as to the form
and amount of consideration to be received, all Investors and Permitted
Transferees will be given the same option; and (ii) the terms of sale shall not
include any indemnification, guaranty or the similar undertaking of the Investor
(other than undertakings of Founding Investors in respect of continued
employment) that is not made or given pro rata with other Investors on the basis
of share ownership. The obligations of each of the Founding Investors with
respect to an Approved Sale which occurs prior to the second anniversary of the
Closing Date are also subject to the condition that the aggregate consideration
received as a result of such Approved Sale by the Minority Stockholders as a
group is at least equal to the Minimum Value Amount (as such terms are
hereinafter defined). For this
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purpose, "Minority Stockholders" means the stockholders of the Company as of the
close of business on the Closing Date other than BRS and the Additional
Investors; and "Minimum Value Amount" equals the product of (x) $30,674,847
times (y) a fraction, the numerator of which is the number of outstanding shares
of Common Stock of the Company held by Minority Stockholders at the time of the
Approved Sale, and the denominator of which is the total number of shares of
Common Stock of the Company outstanding at the time of the Approved Sale.
3.3 Tag-Along.
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(a) (i) Except as otherwise provided in Section
3.3(a)(v), no "Seller" (as hereinafter defined) shall sell any Common Stock in
any transaction or series of related transactions unless all "Holders" (as
hereinafter defined) are offered an equal opportunity to participate in such
transaction or transactions on a pro-rata basis and on identical terms
(including price and type of consideration paid). As used in this Section 3.3,
"Seller" shall mean BRS and its Affiliates who hold in excess of 5% of the
Common Stock; and "Holders" shall mean the Investors and their Permitted
Transferees (other than a Permitted Transferee pursuant to Section 2.4(b)(iv)).
(ii) Prior to any sale of Common Stock subject to
these provisions, the Seller shall notify the Company in writing of the proposed
sale. Such notice (the "Seller's Notice") shall set forth: (A) the number of
shares of Common Stock subject to the proposed sale; (B) the name and address of
the proposed purchaser; and (C) the proposed amount of consideration and terms
and conditions of payment offered by such proposed purchaser. The Company shall
promptly, and in any event within 15 days, mail or cause to be mailed the
Seller's Notice to each Holder. A Holder may exercise the tag-along right by
delivery of a written notice (the "Tag-Along Notice") to the Seller within 15
days of the date the Company mailed or caused to be mailed the Seller's Notice.
The Tag-Along Notice shall state the number of shares of Common Stock that the
Holder proposes to include in the proposed sale. If no Tag-Along Notice is
received during the 15-day period referred to above, the Seller shall have the
right for a 120-day period to effect the proposed sale of shares of Common Stock
on terms and conditions no more favorable than those stated in the notice and in
accordance with the provisions of this Section 3.3.
(iii) Notwithstanding anything herein to the contrary,
a Seller may make any of the following sales without offering the Holders the
opportunity to participate: (A) sales by a Seller to any Affiliate or Permitted
Transferee, provided that the proposed purchaser (except a Permitted Transferee
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by virtue of Section 2.4(b)(iv) hereof) agrees in writing to be bound by the
provisions of this Agreement; (B) sales pursuant to an effective registration
statement under the Securities Act; (C) sales pursuant to an Approved Sale; and
(D) sales other than those specified in the foregoing (A) through (C) which are
made in compliance with Section 2.4(a) and in the aggregate do not exceed 15%
of the Common Stock outstanding.
(iv) Each Investor acknowledges for itself and its
transferees that BRS may grant in the future tag-along rights to other holders
of Common Stock and such holders will (A) have substantially the same
opportunity to participate in sales by BRS and the Founding Investors
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(and other "Sellers") as provided to the parties hereto, and (B) be included in
the calculation of the pro rata basis upon which Holders may participate in a
sale. Without limiting the foregoing, each of the parties hereto acknowledges
and agrees that the Company will adopt an Incentive Compensation Plan (the
"Plan") pursuant to which certain employees employed by the Company and/or its
wholly-owned subsidiaries may be granted, subject to the terms of the Plan,
options to purchase shares of Common Stock of the Company; and that each of the
participants in such Plan may become subject to this Agreement and may be
"Holders" for purposes of this Section 3.3.
(v) The tag-along obligations of the Sellers provided under
this Section 3.3 shall terminate upon the earlier of (A) the consummation of a
Public Offering, and (B) the day after the date on which BRS and its Affiliates
who hold in excess of 5% of the Common Stock own in the aggregate less than 10%
of the Common Stock, and upon the termination of such tag-along obligations, the
rights of the Holders with respect thereto shall also terminate.
(vi) Notwithstanding the requirements of this Section 3.3, a
Seller may sell Common Stock at any time without complying with the requirements
of Section 3.3(a)(ii) so long as the Seller deposits into escrow with an
independent third party at the time of sale that amount of the consideration
received in the sale equal to the "Escrow Amount." The "Escrow Amount" shall
equal that amount of consideration as all the Holders would have been entitled
to receive if they had the opportunity to participate in the sale on a pro rata
basis, determined as if each Holder (A) delivered a Tag-Along Notice to the
Seller in the time period set forth in Section 3.3(a)(ii) and (B) proposed to
include all of its shares of Common Stock in the sale.
No later than the date of the sale, the Seller shall
notify the Company in writing of the proposed sale. Such notice (the "Escrow
Notice") shall set forth the information required in the Seller's Notice, and in
addition, such notice shall state the name of the escrow agent and, if the
consideration (in whole or in part) for the sale was cash, then the account
number of the escrow account. The Company shall promptly, and in any event
within 10 days, mail or cause to be mailed the Escrow Notice to each Holder.
A Holder may exercise the tag-along right by delivery
to the Seller, within 15 days of the date the Company mailed or caused to be
mailed the Escrow Notice, of (A) a written notice specifying the number of
shares of Common Stock it proposes to sell, and (B) the certificates for such
Common Stock, with stock powers duly endorsed in blank.
Promptly after the expiration of the 15th day after the
Company has mailed or caused to be mailed the Escrow Notice, (A) the Seller
shall purchase that number of shares of Common Stock as Seller would have been
required to include in the sale had Seller complied with the provisions of
Section 3.3(a)(ii), (B) all shares of Common Stock not required to be purchased
by Seller shall be returned to the Holders thereof, and (C) all remaining funds
and other consideration held in escrow shall be released to Seller. If Seller
received consideration other than cash in its sale, Seller shall purchase the
shares of Common Stock tendered by paying to the Holders non-cash consideration
and cash in the same proportion as received by Seller in the sale.
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3.4 Certain Preemptive Rights.
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(a) If the Company proposes to issue any shares of Common Stock
to BRS or its Affiliates, other than in a transaction described in Section
3.4(d) below, the Company shall first offer in writing to sell to each Founding
Investor such Investor's pro rata share of the proposed issue of Common Stock,
at the same price and on the same terms at which the Company proposes to sell
such issue to BRS or its Affiliates. For purposes hereof, a Founding Investor's
"pro rata share" of an issue of Common Stock shall be that number which is equal
to the product of (i) the number of shares proposed to be issued to BRS or its
Affiliates, times (ii) a fraction, the numerator of which is the number of
outstanding shares of Common Stock held by such Founding Investor, and the
denominator of which is the aggregate number of outstanding shares of Common
Stock calculated on a fully diluted basis.
(b) The Company's offer shall describe the quantity, the price
and payment terms of the Common Stock proposed to be issued to BRS or its
Affiliates. Each Founding Investor shall have 30 days from receipt of such offer
to accept the offer in writing, which acceptance may be as to all or any part of
such Founding Investor's pro rata share of such issue. Sale of the portion of
the Common Stock subscribed for under this Section 3.4(b) shall be held on a
date acceptable to the Company and those persons who have exercised their
preemptive rights, but in no case more than 60 days after the date of the
Company's offer to such persons. Notwithstanding the foregoing, nothing in this
Section 3.4 will limit the right of the Company, if any Founding Investor has
not accepted the Company's offer made pursuant to paragraph (a) above within 15
days of the Founding Investor's receipt of such offer, thereupon to consummate
the issuance to BRS or its Affiliates of the number of shares of Common Stock
included in such issuance which does not represent such Founding Investor's pro
rata share of such issuance.
(c) In the event either of the Founding Investors does not
subscribe for all of the issue of Common Stock offered to him pursuant to this
Section 3.4, the Company may issue to BRS the number of shares of Common Stock
not subscribed for at a price no less favorable to the Company than that
specified in such offer and on payment and other terms no less favorable to the
Company than those specified in such offer.
(d) Any shares of Common Stock issued pursuant to the Closing of
the transactions contemplated under this Agreement or the Merger Agreement and
any issuance of shares of Common Stock upon conversion of the Common Stock (or
in connection with any stock dividend, stock split or similar transaction) shall
be excluded from the applicability of this Section 3.4.
(e) The preemptive rights granted by this Section 3.4 shall
expire at the earlier of (i) as to either of the Founding Investors, at such
time as such Founding Investor (together with his Permitted Transferees) holds
less than 5% of the outstanding shares of Common Stock, or (ii) upon the
consummation of a Public Offering.
-11-
<PAGE>
ARTICLE IV
CORPORATE ACTIONS
-----------------
4.1 Articles of Incorporation and Bylaws. Each Investor has reviewed
------------------------------------
the Articles of Incorporation and Bylaws of the Company in the forms attached
hereto as Exhibits B-1 and B-2, and hereby approves and ratifies the same.
4.2 Directors and Voting Agreements. Each Investor and Permitted
-------------------------------
Transferee agrees that it shall take, at any time and from time to time, all
action necessary (including voting the Common Stock owned by him, her or it,
calling special meetings of stockholders and executing and delivering written
consents) to ensure that the Board of Directors of the Company is composed at
all times of at least five persons (with the exact number to be determined by
BRS from time to time) as follows: (a) prior to the third anniversary of the
Closing Date, Richard L. Rosenfield (who during such time period shall also be a
Co-Chairman of the Board of Directors of the Company), so long as he is a
stockholder of the Company, Larry S. Flax (who during such time period shall
also be a Co-Chairman of the Board of Directors of the Company), so long as he
is a stockholder of the Company, and the balance of the members designated by
BRS; and (b) on and after the third anniversary of the Closing Date, one
individual designated jointly by Richard L. Rosenfield and Larry S. Flax (but
only so long as Messrs. Rosenfield and Flax together then own or have voting
power over 16-2/3% or more of the then outstanding Common Stock of the Company)
and the balance of the members designated by BRS.
4.3 Right to Remove Certain of the Company's Directors. Each of BRS
--------------------------------------------------
and the Founding Investors, as the case may be, may request that any director
designated by it be removed (with or without cause) by written notice to the
other Investors, and, in any such event, each Investor and Permitted Transferee
shall promptly consent in writing or vote or cause to be voted all shares of
Class A Common Stock now or hereafter owned or controlled by them or it for the
removal of such person as a director. In the event any person ceases to be a
director, such person shall also cease to be a member of any committee of the
Board of Directors or the Company.
4.4 Right to Fill Certain Vacancies in Company's Board. In the event
--------------------------------------------------
that a vacancy (other than any vacancies created by the initial adoption by the
Company of the revised Bylaws of the Company attached hereto as Exhibit B-2
immediately following the closing under the Merger Agreement, which vacancies
shall be filled by the Company's then sole director) is created on the Company's
Board of Directors at any time by the death, disability, retirement, resignation
or removal (with or without cause) of a director designated by BRS or the
Founding Investors, as the case may be, or if otherwise there shall exist or
occur any vacancy on the Company's Board of Directors in a directorship subject
to designation by BRS or the Founding Investors, as the case may be, such
vacancy shall not be filled by the remaining members of the Company's Board of
Directors but each Investor and Permitted Transferee hereby agrees promptly to
consent in writing or vote or cause to be voted all shares of Class A Common
Stock now or hereafter owned or controlled by them
-12-
<PAGE>
or it to elect that individual designated to fill such vacancy and serve as a
director, as shall be designated by the Investor then entitled to designate such
director pursuant to Section 4.2.
4.5 Cumulative Voting. Each Investor and Permitted Transferee hereby
-----------------
waives any and all cumulative voting rights which may be granted to such
Investor under California law or otherwise.
4.6 Amendment of Articles and Bylaws. Each Investor and Permitted
--------------------------------
Transferee agrees that it shall not consent in writing or vote or cause to be
voted any shares of Common Stock now or hereafter owned or controlled by it in
favor of any amendment, repeal, modification, alteration or rescission of, or
the adoption of any provision in the Company's Articles of Incorporation or
Bylaws inconsistent with this Agreement unless BRS consents in writing to such
action or votes or causes to be voted all of the shares of Common Stock held by
it in favor of such action; provided that BRS shall not consent to any amendment
--------
which would adversely affect either of the Founding Investor's right to
designate a director to the Company's Board of Directors or remove, or fill any
vacancy created with respect to, any director entitled to be designated by a
Founding Investor as set forth in Sections 4.2, 4.3 and 4.4 of this Agreement.
4.7 Directors of Subsidiaries. The Company shall take, and each of
-------------------------
the Investors and Permitted Transferees agrees that it shall cause the Company
to take, at any time and from time to time, all action necessary (including
voting all shares of common stock of the subsidiaries owned by the Company,
calling special meetings of stockholders and executing and delivering written
consents) to ensure that the Board of Directors of any subsidiary is identical
to the Board of Directors of the Company.
4.8 Termination of Voting Agreements. The voting agreements in
--------------------------------
Sections 4.2, 4.3, 4.4, 4.5 and 4.6 shall terminate on the earlier of (i) the
date the Company consummates a Public Offering and (ii) the date when BRS and
its Permitted Transferees and their respective Affiliates no longer own in the
aggregate at least 35% of the issued and outstanding Common Stock.
4.9 Officers. Each Investor approves the election of the following
--------
officers of the Company, together with such other officers as may be elected or
appointed by the Company or its Board of Directors:
Name Position
---- --------
Richard L. Rosenfield Co-Chairman
Larry S. Flax Co-Chairman
Fortunato N. Valenti Acting Chief Executive Officer
4.10 Management Rights. For so long as BRS owns in the aggregate at
-----------------
least 5% of the outstanding Securities on a fully diluted basis and there has
not been a Public Offering:
-13-
<PAGE>
(a) Right of Consultation. BRS shall have the right to consult with
---------------------
and advise the management of the Company and its subsidiaries, at any time or
from time to time, on all matters relating to the operation of the Company and
its subsidiaries, including, without limitation, significant changes in
management personnel and compensation or employee benefits, the introduction of
new products or new lines of business, important acquisitions or dispositions of
plant and equipment, significant research and development programs, the purchase
or sale of important patents, trademarks, licenses and concessions, the
negotiation, execution and delivery of any material contracts, including without
limitation franchise or license agreements, and the proposed compromise of any
significant litigation.
(b) Observation Rights. BRS shall have the right to have its
------------------
representatives (in addition to its representatives that are directors) attend
meetings of the Board of Directors (and committees thereof) of the Company. The
Company shall give BRS (i) at least three days' notice of each regular meeting
of the Board of Directors of the Company, (ii) such notice as is necessary under
the circumstances to enable BRS's representatives to attend each special or
emergency meeting of the Board of Directors of the Company, (iii) on or prior to
the date of each meeting of the Board of Directors of the Company all
information given to the directors at such meeting and (iv) within 90 days
following each meeting of the Board of Directors of the Company, copies of the
minutes of such meeting.
(c) Inspection and Access. The Company shall provide to BRS true and
---------------------
correct copies of all quarterly and annual financial reports of the Company and
budgets prepared by or on behalf of the Company, and such other documents,
reports, financial data and other information as BRS may reasonably request. The
Company shall permit any authorized representatives designated by BRS to visit
and inspect any of the properties of the Company or any of 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 BRS may reasonably request.
ARTICLE V
REGISTRATION RIGHTS
-------------------
The Investors shall have registration rights with respect to the
Securities as set forth in the Registration Rights Agreement attached hereto as
Exhibit C. Each of the Investors agrees not to effect any public sale or
distribution of any securities of the Company during the periods specified in
the Registration Rights Agreement, except as permitted by the Registration
Rights Agreement, and each such Investor agrees to be bound by the rights of
priority to participate in offerings as set forth therein.
-14-
<PAGE>
ARTICLE VI
MISCELLANEOUS
-------------
6.1 Amendment and Modification. This Agreement may be amended or
--------------------------
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) BRS (so long
as BRS and its Affiliates, officers, directors and employees own in the
aggregate at least 35% of the outstanding Common Stock on a fully diluted basis)
and (iii) the holders of a majority of the outstanding Common Stock on a fully
diluted basis (including Securities owned by BRS and its Affiliates); provided,
however, that (a) the provisions of Section 2.4, 3.1, 3.2, 3.3 and 3.4 and
Article IV of this Agreement which are for the express benefit of the Founding
Investors cannot be amended, modified or waived unless the Founding Investors
also execute such amendment or waiver and (b) the provisions of Section 4.10
cannot be amended, modified or waived unless BRS also executes such amendment or
waiver and (c) no amendment or waiver which materially and adversely affects
any Investor differently from any other Investor shall be made unless such
Investor executes such amendment or waiver. 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.
6.2 Survival of Representations and Warranties. All representations,
------------------------------------------
warranties, covenants and agreements set forth in this Agreement will survive
the execution and delivery of this Agreement and the Closing Date and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
6.3 Successors and Assigns: Entire Agreement. This Agreement and all
----------------------------------------
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understanding among the parties as to the subject matter hereof
(except for the Assignment Agreement) and merges and supersedes all prior
discussions and understandings of any and every nature among them (except for
the Assignment Agreement).
6.4 Separability. 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 remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
6.5 Notices. All notices provided for or permitted hereunder shall be
-------
made in writing by hand-delivery, registered or certified first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery to the other
party at the following addresses (or at such other address as shall be given in
writing by any party to the others):
-15-
<PAGE>
If to the Company:
California Pizza Kitchen, Inc.
6053 West Century Blvd., 11th Floor
Los Angeles, California 90045-6442
Attention: President
Fax: (310) 575-5750
Confirm: (310) 575-3000
with a required copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Attention: G. Daniel O'Donnell
Fax: (215) 994-2222
Confirm: (215) 994-2762
If to BRS:
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Fax: (212) 521-3799
Confirm: (212) 521-3707
with a required copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: G. Daniel O'Donnell, Esq.
Fax: (215) 994-2222
Confirm: (215) 994-2762
-16-
<PAGE>
If to Richard L. Rosenfield or Larry S. Flax:
c/o California Pizza Kitchen, Inc.
6053 West Century Blvd., 11th Floor
Los Angeles, California 90045-6442
Fax: (310) 575-5750
Confirm: (310) 575-3000
in each case, with a required copy to:
Stein & Kahan, a Law Corporation
1299 Ocean Avenue, 4th Floor
Santa Monica, California 90401
Attention: Robert Kahan
Fax: (310) 394-4759
Confirm: (310) 458-6900
If to the Additional Investors:
To the respective address for each such Additional Investor
listed beneath such Additional Investor's name on the signature
pages hereof
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
6.6 Governing Law. The validity, performance, construction and effect
-------------
of this Agreement shall be governed by and construed in accordance with the
internal law of the State of New York (except insofar as the provisions of the
General Corporation Law of the State of California and relevant decisions of
California courts construing such provisions mandatorily apply hereto at such
times as the Company is a California corporation), without giving effect to
principles of conflicts of law. Each party hereto, for itself and its successors
and assigns, irrevocably agrees that any suit, action or proceeding arising out
of or relating to this Agreement shall be instituted only in the United States
District Court for the Southern District of New York, United States of America
or in the absence of jurisdiction, the Supreme Court of New York located in New
York City and generally and unconditionally accepts and irrevocably submits to
the exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby from which no appeal has been taken
or is available in connection with this Agreement. Each party, for itself and
its successors and assigns, irrevocably waives any objection it may have now or
hereafter to the laying of the venue of any such suit, action or proceeding,
including, without limitation, any objection based on the grounds of forum non
conveniens, in the aforesaid courts. Each party, for itself and its successors
and assigns, irrevocably agrees that all process in any such proceedings in any
such court may be
-17-
<PAGE>
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its address set
forth in Section 6.5 or at such other address of which the other parties shall
have been notified in accordance with the provisions of Section 6.5, such
service being hereby acknowledged by the parties to be effective and binding
service in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law.
6.7 Headings. The headings in 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. Unless otherwise specified, section
references herein refer to sections of this Agreement and schedules and exhibits
refer to schedules and exhibits attached hereto.
6.8 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.
6.9 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.
6.10 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 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.
6.11 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 for
purposes of this Agreement.
6.12 No Effect on Employment. Nothing herein contained shall confer
-----------------------
on any Investor the right to enter into or remain in the employ of the Company
or any of its subsidiaries or Affiliates.
6.13 Pronouns. Whenever the context may require, any pronouns used
--------
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
6.14 Termination. This Agreement will terminate only upon the written
-----------
agreement of all of the Investors who are still parties hereto or when all of
the Investors except any one Investor no longer hold any equity securities of
the Company.
-18-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CALIFORNIA PIZZA KITCHEN, INC.
By: /s/ Richard C. Stockinger
--------------------------------------
Name: Richard C. Stockinger
Title: Vice President
BRUCKMANN, ROSSER, SHERRILL & CO., L.P.
By BRS Partners, Limited Partnership, its general
partner, by BRSE Associates, Inc., its general partner
By: /s/ Harold O. Rosser
--------------------------------------
Name: Harold O. Rosser
Title: Managing Director
/s/ Larry S. Flax
-----------------------------------------
Larry S. Flax
Individually and as trustee under the Voting Trust
Agreement
/s/ Richard L. Rosenfield
-----------------------------------------
Richard L. Rosenfield
Individually and as trustee under the Voting Trust
Agreement Trust
/s/ Bruce C. Bruckmann
-----------------------------------------
Bruce C. Bruckmann
SS#: - -
Address:
New York, NY 10028
-19-
<PAGE>
BCB FAMILY PARTNERS
By Bruce C. Bruckmann, General Partner
By: /s/ Bruce C. Bruckmann*
------------------------------------
Name:
Title:
/s/ Donald Bruckmann*
---------------------------------------
Donald Bruckmann
SS#: - -
Address:
New York, NY 10021
NAZ FAMILY PARTNERS
By Nancy A. Zweng, General Partner
By: /s/ Nancy A. Zweng*
------------------------------------
Name:
Title:
/s/ Nancy A. Zweng*
---------------------------------------
Nancy A. Zweng
SS#: - -
Address:
New York, NY 10028
/s/ H. Virgil Sherrill*
---------------------------------------
H. Virgil Sherrill
SS#: - -
Address: One Sutton Place South
New York, NY 10022
-20-
<PAGE>
/s/ Stephen C. Sherrill*
---------------------------------------
Stephen C. Sherrill
SS#: - -
Address:
New York, NY 10021
/s/ Harold O. Rosser
---------------------------------------
Harold O. Rosser
SS#: - -
Address:
New Canaan, CT 06840
/s/ Paul D. Kaminski*
---------------------------------------
Paul D. Kaminski
SS#: - -
Address:
New York, NY 10011
/s/ J. Rice Edmonds*
---------------------------------------
J. Rice Edmonds
SS#:
Address:
/s/ Marilena Tibrea*
---------------------------------------
Marilena Tibrea
SS#:
Address:
-21-
<PAGE>
FURMAN SELZ SBIC, L.P.
By Furman Selz SBIC Investments L.L.C.
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
Title:
/s/ Roy Furnam
---------------------------------------
Roy Furnam
SS#: - -
Address:
New York, NY 10169
/s/ David Harris
---------------------------------------
David Harris
SS#: - -
Address:
New York, NY 10169
BANCBOSTON INVESTMENTS INC.
By: /s/ Theresa A. Nigi
------------------------------------
Name: Theresa A. Nigi
Title: Vice President
/s/ Eric Gleacher
---------------------------------------
Eric Gleacher
SS#: - -
Address:
New York, NY 10128
-22-
<PAGE>
/s/ Robert Engel
---------------------------------------
Robert Engel
SS#: - -
Address:
New York, NY 10024
/s/ James Goodwin
---------------------------------------
James Goodwin
SS#: - -
Address:
New York, NY 10021
/s/ Emil Henry
---------------------------------------
Emil Henry
SS#: - -
Address:
Bedford, NY 10506
/s/ Roger Hoit
---------------------------------------
Roger Hoit
SS#: - -
Address:
Summit, NJ 07901
/s/ H. Conrad Meyer III
---------------------------------------
H. Conrad Meyer III
SS#: - -
Address:
Bronxville, NY 10708
-23-
<PAGE>
Spousal Consent
---------------
I, Joan Flax, am the spouse of Larry S. Flax, who is a party to that
certain Securities Holders Agreement dated as of September 30, 1997 (the
"Shareholders Agreement"), by and among California Pizza Kitchen, Inc., a
California corporation (the "Company"), Bruckmann, Rosser, Sherrill & Co., L.P.,
a Delaware limited partnership, the individuals and entities set forth on
Exhibit A thereto, and Richard L. Rosenfield and Larry S. Flax in their
individual capacities and as Trustee under the California Pizza Kitchen, Inc.
Voting Trust Agreement, dated March 1, 1990, as amended March 2, 1990. I hereby
represent, warrant and acknowledge that I have read and understood the foregoing
Shareholders Agreement; and that I know the contents of said Shareholders
Agreement, including, but not limited to, the provisions regarding transfer of
interests; and I hereby consent to all of the terms of the Shareholders
Agreement and to the execution of the Shareholders Agreement by my spouse. I
hereby further agree that I will take no action at any time to hinder the
operation of the Shareholders Agreement.
/s/ Joan Flax
--------------------
Joan Flax
<PAGE>
Spousal Consent
---------------
I, Esther Rosenfield, am the spouse of Richard L. Rosenfield, who is a
party to that certain Securities Holders Agreement dated as of September 30,
1997 (the "Shareholders Agreement"), by and among California Pizza Kitchen,
Inc., a California corporation (the "Company"), Bruckmann, Rosser,
Sherrill & Co., L.P., a Delaware limited partnership, the individuals and
entities set forth on Exhibit A thereto, and Richard L. Rosenfield and
Larry S. Flax in their individual capacities and as Trustee under the California
Pizza Kitchen, Inc. Voting Trust Agreement, dated March 1, 1990, as amended
March 2, 1990. I hereby represent, warrant and acknowledge that I have read and
understood the foregoing Shareholders Agreement; and that I know the contents of
said Shareholders Agreement, including, but not limited to, the provisions
regarding transfer of interests; and I hereby consent to all of the terms of the
Shareholders Agreement and to the execution of the Shareholders Agreement by my
spouse. I hereby further agree that I will take no action at any time to hinder
the operation of the Shareholders Agreement.
/s/ Esther Rosenfield
----------------------------
Esther Rosenfield
<PAGE>
Exhibit A
Additional Investors
--------------------
Shares of Shares of
Class A Class B
Common Stock Common Stock
------------ ------------
Furman Selz SBIC, L.P. 1,307,560 0
Roy Furman 26,960 0
David Harris 13,480 0
BancBoston Investments Inc. 0 269,600
Eric Gleacher 67,400 0
Robert Engel 20,220 0
James Goodwin 13,480 0
Emil Henry 13,480 0
Roger Hoit 6,740 0
Conrad Meyer 20,220 0
David Mills 6,740 0
Charles Phillips 67,400 0
Clay Rohrbach 20,220 0
Jeffrey Tepper 6,740 0
Gleacher IV, L.P. 26,960 0
Bruce Bruckman 96,475 0
BCB Family Partners 5,387 0
Donald Bruckmann 12,529 0
NAZ Family Partners 2,600 0
Nancy A. Zweng 3,759 0
H. Virgil Sherrill 62,648 0
Stephen C. Sherrill 96,475 0
<PAGE>
Harold O. Rosser 18,794 0
Paul Kaminski 16,985 0
Rice Edmonds 2,696 0
Marilena Tibrea 539 0
<PAGE>
California Pizza Kitchen Total Outstanding Common Stock
-------------------------------------------------------
Shares of Class Shares of Class
A Common Stock B Common Stock
-------------- ---------------
Bruckmann, Rosser, Sherrill 4,533,913 0
& Co., L.P.
Bruce Bruckmann 96,475 0
BCB Family Partners 5,387 0
Donald Bruckmann 12,529 0
NAZ Family Partners 2,600 0
Nancy A. Zweng 3,759 0
H. Virgil Sherrill 62,648 0
Stephen C. Sherrill 96,475 0
Harold O. Rosser 18,794 0
Paul Kaminski 16,985 0
Rice Edmonds 2,696 0
Marilena Tibrea 539 0
Furman Selz SBIC, L.P. 1,307,560 0
Roy Furman 26,960 0
David Harris 13,480 0
BancBoston Investments Inc. 0 269,600
Richard L. Rosenfield 1,236,275.88 0
Larry S. Flax 1,268,905.31 0
Rosenfield Children Trust 84,958.66 0
Eric Gleacher 67,400 0
Robert Engel 20,220 0
James Goodwin 13,480 0
Emil Henry 13,480 0
Roger Hoit 6,740 0
Conrad Meyer 20,220 0
David Mills 6,740 0
<PAGE>
Charles Phillips 67,400 0
Clay Rohrback 20,220 0
Jeffrey Tepper 6,740 0
Gleacher IV, L.P. 26,960 0
Others 669,860.15 0
---------- ---------
Totals 9,730,400 269,600
<PAGE>
FIRST AMENDMENT TO
SECURITIES HOLDERS AGREEMENT
THIS IS A FIRST AMENDMENT TO SECURITIES HOLDERS AGREEMENT (this
"Amendment"), dated as of June 30, 2000, among California Pizza Kitchen, Inc.
(the "Company"), Bruckmann, Rosser, Sherrill & Co., L.P., Richard L. Rosenfield,
Larry S. Flax and the Additional Investors (each a "Party" and, collectively the
"Parties").
Background
----------
A. The Parties are parties to a Securities Holders Agreement, dated as
of September 30, 1997 (the "Agreement"). Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Agreement.
B. The Company plans to consummate a Public Offering.
C. The Agreement contains certain terms and conditions that the Parties
wish to terminate upon consummation of the Public Offering.
Terms
-----
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Agreement, intending to be legally bound hereby, the Parties
agree as follows:
1. Amendment of Section 2.2. Effective upon the closing of the
------------------------
Public Offering by the Company, the following shall be added to the end of
Section 2.2 of the Agreement:
"Notwithstanding the foregoing, the holder of any certificates
representing Securities may deliver such certificates to the Company
at any time during normal business hours. Upon such delivery, the
Company shall forthwith issue, or caused to be issued, to such holder,
new certificates in identical form without the second of the above
restrictive legends; provided, however, that if such delivery is
-------- -------
accompanied by a written opinion of counsel addressed to the Company
and the Transfer Agent, if other than the Company, and reasonably
satisfactory in form and substance to each addressee, to the effect
that the Securities may be Transferred without registration under the
Securities Act and
<PAGE>
applicable state securities laws, the Company shall forthwith issue,
or cause to be issued, to such holder new certificates in identical
form but without either of the above restrictive legends."
2. Amendment of Section 2.4. Effective upon the closing of the
------------------------
Public Offering by the Company, clauses (a), (d) and (e) of Section 2.4 shall be
deleted in their entirety and shall be of no further force or effect.
3. Amendment of Section 2.5. Effective upon the closing of the
------------------------
Public Offering by the Company, Section 2.5 shall be deleted in its entirety and
shall be of no further force or effect.
4. Other Provisions Unaffected. Except as expressly modified
---------------------------
herein, all arrangements, agreements, terms, conditions and provisions of the
Agreement remain in full force and effect, and this Amendment and the Agreement,
as hereby modified, shall constitute one and the same instrument.
5. Miscellaneous.
-------------
a. Counterparts. This Amendment may be executed in two or
------------
more counterparts and by the Parties 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.
b. Governing Law. The validity, performance, construction
-------------
and effect of this Amendment and the Agreement shall be governed by and
construed in accordance with the internal law of the State of New York (except
insofar as the provisions of the General Corporation Law of the State of
California and relevant decisions of California courts construing such
provisions mandatorily apply hereto at such times as the Company is a California
corporation), without giving effect to principles of conflicts of law.
c. 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 Amendment, the Agreement, generally, and
the transactions contemplated hereunder and/or thereunder.
d. Headings. The headings in this Amendment and the
--------
Agreement are for convenience of reference only and shall not constitute a part
of the Agreement, nor shall they affect its meaning, construction or effect.
e. Entire Agreement. This Amendment and the Agreement, and
----------------
all of the provisions hereof and/or thereof, shall be binding upon and inure to
the benefit of the Parties and their respective successors and permitted assigns
and executors, administrators and heirs. This Amendment, together with the
Agreement, sets forth the entire agreement and understanding among the Parties
as to the subject matter hereof (except for the Assignment
<PAGE>
Agreement) and merges with and supercedes all prior discussions and
understandings of any and every nature among them (except for the Assignment
Agreement).
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this First Amendment to
Securities Holders Agreement as of the date first set forth above.
CALIFORNIA PIZZA KITCHEN, INC.
By: /s/ H.G. Carrington, Jr.
__________________________
Name: H.G. Carrington, Jr.
Title: Executive Vice President
and Chief Financial Officer
BRUCKMANN, ROSSER, SHERRILL & CO., L.P.
By BRS Partners, Limited Partnership, its general partner,
by BRSE Associates, Inc., its general partner
By: /s/ Stephen F. Edwards
__________________________
Name:
Title:
/s/ Larry S. Flax
________________________________
Larry S. Flax, individually and as
trustee under the Voting Trust Agreement
/s/ Richard L. Rosenfield
________________________________
Richard L. Rosenfield, individually and as
trustee under the Voting Trust Agreement
*
________________________________
Bruce C. Bruckmann
BCB FAMILY PARTNERS
*
By: __________________________
Name: Bruce C. Bruckmann
Title: General Partner
<PAGE>
*
________________________________
Donald Bruckmann
NAZ FAMILY PARTNERS
*
By: _________________________
Name: Nancy A. Zweng
Title: General Partner
*
________________________________
Nancy A. Zweng
*
________________________________
H. Virgil Sherrill
*
________________________________
Stephen C. Sherrill
*
________________________________
Harold O. Rosser
*
________________________________
Paul D. Kaminski
*
________________________________
J. Rice Edmonds
*
________________________________
Marilena Tibrea
<PAGE>
FURMAN SELZ SBIC, L.P.
By Furman Selz SBIC Investments LLC
By: /s/ Brian P. Friedman
__________________________
Name: Brian P. Friedman
Title: President
/s/ Roy Furman
________________________________
Roy Furman
/s/ David Harris
________________________________
David Harris
BANCBOSTON INVESTMENTS INC.
By: __________________________
Name:
Title:
* By: /s/ Stephen F. Edwards
________________________
Attorney-in-fact
<PAGE>
I, Joan Flax, am the spouse of Larry S. Flax, who is a party to that
certain First Amendment to Securities Holders Agreement dated as of June __,
2000 (the "Amendment"), by and among California Pizza Kitchen, Inc., a
California corporation (the "Company"), Bruckmann, Rosser, Sherrill & Co., L.P.,
a Delaware limited partnership, Richard L. Rosenfield, Larry S. Flax and the
Additional Investors named therein. I hereby represent, warrant and acknowledge
that I have read and understood the foregoing Amendment; and that I know the
contents of said Amendment; and I hereby consent to all of the terms of the
Amendment and to the execution of the Amendment by my spouse. I hereby further
agree that I will take no action at any time to hinder the operation of the
Amendment.
/s/ Joan Flax
____________________________________
Joan Flax
<PAGE>
I, Esther Rosenfield, am the spouse of Richard L. Rosenfield, who is a party
to that certain First Amendment to Securities Holders Agreement dated as of June
__, 2000 (the "Amendment"), by and among California Pizza Kitchen, Inc., a
California corporation (the "Company"), Bruckmann, Rosser, Sherrill & Co., L.P.,
a Delaware limited partnership, Richard L. Rosenfield, Larry S. Flax and the
Additional Investors named therein. I hereby represent, warrant and acknowledge
that I have read and understood the foregoing Amendment; and that I know the
contents of said Amendment; and I hereby consent to all of the terms of the
Amendment and to the execution of the Amendment by my spouse. I hereby further
agree that I will take no action at any time to hinder the operation of the
Amendment.
/s/ Esther Rosenfield
____________________________________
Esther Rosenfield