<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported) October 15, 1998
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AFC ENTERPRISES, INC.
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(Exact name of registrant as specified in its charter)
Minnesota - 58-2016606
--------------- ----------- ------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
Six Concourse Parkway, Suite 1700, Atlanta, Georgia 30328-5352
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 391-9500
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Not Applicable
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(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
------------------------------------
On October 15, 1998, the Company acquired Cinnabon International, Inc.
("CII"), the operator and franchisor of 358 retail cinnamon roll bakeries
operating in 39 states, Canada and Mexico. Two hundred and fourteen of the
retail cinnamon roll bakeries are Company-operated and are located within the
United States. In connection with the acquisition, which will be accounted for
as a purchase, CII will become a wholly-owned subsidiary of AFC through the
merger of AFC Franchise Acquisition Corp. into CII (the "Acquisition").
The Company acquired CII for $64.0 million in cash. The Company obtained
$50.0 million of the cash consideration from its 1997 Credit Facility, which was
amended to add a $50.0 million Tranche B term loan. The remaining $14.0 million
cash consideration was funded with the proceeds from the sale of approximately
2.8 million shares of AFC common stock to certain "qualified" investors who are
existing AFC shareholders and option holders. The shares were sold at a price of
$7.75 per share and proceeds from the sale totaled approximately $21.7 million.
The amount of consideration to be paid by AFC for CII's common stock was
arrived at through normal common stock valuation techniques which took into
consideration certain factors, including but not limited to, EBITDA multiples,
working capital, potential growth of the business and brand awareness.
The property and equipment to be acquired by AFC as part of the Purchase
are used for the retailing operations of 214 cinnamon roll bakeries. The
property and equipment to be acquired include restaurant and corporate furniture
and equipment as well as leasehold improvements. The acquired property and
equipment will be utilized in the same manner used prior to the Purchase.
Item 7. Financial Statements and Exhibits
---------------------------------
(a) Financial Statements.
It is impractical to provide the required financial statements of CII at
the time of filing this Report. It is anticipated that such financial statements
will be filed by amendment as soon as practicable but in no event later than 75
days following the closing date of the acquisition.
(b) Pro Forma Financial Information.
It is impractical to provide the required pro forma financial
information with respect to CII at the time of filing this Report. It is
anticipated that such financial statements will be filed by amendment as soon as
practicable but in no event later than 75 days following the closing date of the
acquisition.
<PAGE>
(c) Exhibit Index.
Exhibit 10.06 First Amendment to the Agreement and Plan of Merger by and
among Cinnabon International, Inc., AFC Enterprises, Inc. and
AFC Franchise Acquisition Corp., dated as of August 13, 1998
("Merger Agreement").
Exhibit 10.07 Second Amendment to the Merger Agreement.
Exhibit 10.08 Exhibit 2.14(c) to the Merger Agreement--"Taubman Agreements".
Exhibit 10.09 Stockholder Agreement by and among AFC Franchise Acquisition
Corp. and other parties signatories dated as of August 13,
1998.
Exhibit 2.13 to the Merger Agreement referred to in the Company's Form 8-K
filing dated August 13, 1998 was deleted from the Merger Agreement at closing.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AFC Enterprises, Inc.
By: /s/ Gerald J. Wilkins
-----------------------------------
Gerald J. Wilkins
Chief Financial Officer
(Principal Financial and Accounting
Officer)
DATE: October 29, 1998
<PAGE>
EXHIBIT 10.06
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger is made and entered
into as of the 25th day of September, 1998, by and among AFC Enterprises, Inc.,
a Minnesota corporation (the "Buyer"), AFC Franchise Acquisition Corp., a
Delaware corporation (the "Acquisition Company"), and Cinnabon International,
Inc., a Delaware corporation (the "Company").
RECITALS
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On August 13, 1998, the Buyer, the Acquisition Company and the Company
entered into an Agreement and Plan of Merger (the "Merger Agreement") setting
forth the terms and conditions of a merger of the Acquisition Company with and
into the Company (capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement). Pursuant to
Section 2.9(a) of the Merger Agreement, the Closing of the Merger is to occur no
later than September 28, 1998. The parties desire to extend the Closing Date to
October 7, 1998.
AGREEMENT
---------
In consideration for the mutual covenants and conditions hereinafter set
forth and other good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto hereby mutually
agree as follows:
1. Section 2.9 (a) of the Merger Agreement is hereby amended by changing
the date "September 28, 1998" as it appear therein to "October 7, 1998."
2. Except as amended hereby, the Merger Agreement is ratified, approved
and confirmed as originally executed by the parties hereto.
3. This Amendment may be executed in counterparts, each of which shall be
deemed and original, but all of which together shall constitute one and the same
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
Attest: CINNABON INTERNATIONAL, INC.
By:
- ----------------------------- --------------------------------
Name:
Title:
Attest: AFC ENTERPRISES, INC.
By:
- ----------------------------- --------------------------------
Kenneth S. Kaplan, Assistant Samuel N. Frankel, Executive
Secretary Vice President
Attest: AFC FRANCHISE ACQUISITION CORP.
By:
- ----------------------------- --------------------------------
Kenneth S. Kaplan, Assistant Samuel N. Frankel, Executive
Secretary Vice President:
<PAGE>
EXHIBIT 10.07
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Second Amendment to Agreement and Plan of Merger is made and entered
into as of the 14th of October, 1998, by and among AFC Enterprises, Inc., a
Minnesota corporation (the "Buyer"), AFC Franchise Acquisition Corp., a Delaware
corporation (the "Acquisition Company"), and Cinnabon International, Inc., a
Delaware corporation (the "Company").
RECITALS
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A. On August 13, 1998, the Buyer, the Acquisition Company and the Company
entered into an Agreement and Plan of Merger (as amended by First Amendment
thereto dated September 25, 1998, the "Merger Agreement") setting forth the
terms and conditions of a merger of the Acquisition Company with and into the
Company (capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement).
B. Section 2.1 of the Merger Agreement provides that the Buyer shall make
available the sum of $67,000,000 to be used to repay the Obligations (the "Buyer
Contribution").
C. The parties desire to amend the Agreement to make certain adjustments
to the Buyer Contribution.
AGREEMENT
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In consideration for the mutual covenants and conditions hereinafter set
forth and other good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto hereby mutually
agree as follows:
1. Section 2.1 of the Merger Agreement is hereby amended by reducing the
amount of the Buyer Contribution from $67,000,000 to $64,000,000.
2. Section 2.14 of the Merger Agreement is hereby amended by adding to the
end thereof a new subsection (c) as follows:
(c) Holdback. Notwithstanding anything herein to the contrary, the sum of
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Five Million Dollars ($5,000,000) (the "Holdback") shall be withheld from the
Buyer Contribution and not applied to the Obligations identified as "Holdback
Obligations" on Schedule 2.8 to the Merger Agreement, as amended. Buyer shall
cause the Subsidiary to use its commercially reasonable best efforts to enter
into agreements with, obtain consents and waivers from, and make payment to The
Taubman Company, acting on behalf of the landlord for each of the locations
described on Exhibit 2.14(c) hereto, in form and substance acceptable to Buyer,
---------------
containing the terms and conditions set forth on
<PAGE>
Exhibit 2.14(c) (collectively the "Taubman Agreements"), by 5:00 p.m. Eastern
- ---------------
Time on October 16, 1998 (the "Taubman Deadline"). In the event the Taubman
Agreements have been properly executed and delivered by all parties thereto by
the Taubman Deadline, then on Monday, October 19, 1998, Buyer shall cause the
Holdback to be distributed to the holders of the Holdback Obligations as set
forth in Schedule 2.8, as amended. In the event the Taubman Agreements have not
been properly executed and delivered by the Taubman Deadline, the Holdback shall
be retained by Buyer and the Buyer Contribution shall thereby be reduced to
Fifty-Nine Million Dollars ($59,000,000).
3. Except as amended hereby, the Merger Agreement is ratified, approved
and confirmed as originally executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
Attest: CINNABON INTERNATIONAL, INC.
By:
- ---------------------------- --------------------------------
Name:
Title:
Attest: AFC ENTERPRISES, INC.
By:
- ---------------------------- --------------------------------
Name:
Title:
Attest: AFC FRANCHISE ACQUISITION CORP.
By:
- ---------------------------- --------------------------------
Name:
Title:
<PAGE>
EXHIBIT 10.08
EXHIBIT 2.14 (C) TERM SHEET
Cinnabon, Inc. shall pay to The Taubman Company, or its designee, the sum of
$200,000 in good funds.
The Taubman Company shall deliver the following to Cinnabon, Inc. on or before
5:00 p.m. EDT, Friday, October 16, 1998:
1. Counterparts of Landlord Consent Agreements executed by the fee owner, or its
authorized agent, of each location leased by Cinnabon, Inc. from The Taubman
Company, or its affiliate or a related entity, respectively, containing terms
substantially similar to the following:
A. With respect to all leases, excluding Memorial City and Great Lakes
Crossing, the Landlord Consent Agreement must contain the following
provision:
Section 14.01: Notwithstanding anything contained in the Lease to the
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contrary, Landlord hereby (a) acknowledges that neither the merger of AFC
Franchise Acquisition Corp. with Cinnabon International, Inc. (the
"Merger"), nor any prior actions taken by Tenant in connection therewith,
shall constitute a default or event of default under the Lease and (b)
waives any and all rights it may now or hereafter have under Section 14.01
of the Lease, and any amendment, modification or Rider thereto, in
connection with the Merger, including without limitation, the right, if
any, to terminate the Lease as a result of the Merger or the failure of
Tenant or any other party to comply with any of the requirements of said
Section 14.01.
B. The Landlord Consent Agreements for the Memorial City and Great Lakes
Crossing leases must contain the following provision:
Section 14.01: (Section 7.3 for Memorial City): Notwithstanding anything
-------------
contained in the Lease to the contrary, Landlord hereby (a) consents to
the Merger, (b) acknowledges that neither the Merger, nor any prior
actions taken by Tenant in connection therewith, shall constitute a
default or event of default under the Lease and (c) waives any and all
rights it may now or hereafter have under Section 14.01 of the Great Lakes
Crossing Lease (or under Section 7.3 of the Memorial City Lease), and any
amendment or modification thereto, in connection with the Merger,
including without limitation the right, if any, to terminate the Lease as
a result of the Merger or the failure of Tenant or any other party to
comply with any of the requirements of the aforesaid Section.
C. All of the Landlord Consent Agreements must contain the following
provisions:
Landlord hereby represents as follows:
(a) The Lease is validly existing and presently in full force and effect
between the Landlord and Tenant.
(b) To Landlord's knowledge, Tenant is not in default in the performance
of any of its obligations under the Lease and no condition exists or
event has occurred which, if allowed to continue, would result in or
cause a default or an event of default or would require any
corrective or remedial action by Tenant.
(c) To Landlord's knowledge, the current use of the premises is not
contrary to or in violation of the Lease covenants affecting any of
the leased premises.
2. An amendment to the lease for the premises located in Beverly Center,
executed by La Cienega Associates, a California general partnership, or its
authorized agent, which provides the following:
<PAGE>
Notwithstanding anything contained in the Lease to the contrary, Tenant
shall be permitted to remain on the premises and continue to operate
thereon until January 15, 1999, subject to the other terms and conditions
of the Lease.
AFC agrees for Cinnabon, Inc. to enter into one new lease (Briarwood location)
and four renewal leases (Marley Station, Columbus City, Meadowood and Lakeside)
as follows:
BRIARWOOD:
Rent Commencement Date: Earlier to occur of (i) April 1, 1999 or (ii)
Tenant's opening for business to the general public
Term: 6 years (72 months)
Rent: $120,000 annually
Percentage Rent: 10% of Gross Sales in excess of $1,200,000
Guaranty: None
Store Design and Construction: Same design as store at Stonerdige.
General Terms: All other terms and conditions to be substantially the same
as those contained in the Sun Valley, Hilltop and Fair Oaks leases.
MARLEY STATION:
Rent Commencement Date: July 1, 1999, Tenant's Work (remodeling) to be
completed on or before October 1, 1999
Term: 6 years (72 months)
Rent: $65,000 annually
Percentage Rent: 10% of Gross Sales in excess of $850,000
Guaranty: None
Store Design and Construction: Same design as store at Stoneridge.
General Terms: All other terms and conditions to be substantially the same
as those contained in the Sun Valley, Hilltop and Fair Oaks leases.
LAKESIDE:
Rent Commencement Date: February 1, 1999; Tenant's Work (remodeling) to be
completed on or before June 1, 1999
Term: 6 years (72 months)
Rent: $92,000 annually
Percentage Rent: 10% of Gross Sales in excess of $920,000
<PAGE>
Guaranty: None
Store Design and Construction: Same design as store at Stoneridge.
General Terms: All other terms and conditions to be substantially the same
as those contained in the Sun Valley, Hilltop and Fair Oaks leases.
MEADOWOOD:
Rent Commencement Date: July 1, 1999, Tenant's Work (remodeling) to be
completed on or before October 1, 1999
Term: 6 years (72 months)
Rent: $105,000 annually
Percentage Rent: 10% of Gross Sales in excess of $1,050,000
Guaranty: None
Store Design and Construction: Same design as store at Stoneridge.
General Terms: All other terms and conditions to be substantially the same
as those contained in the Sun Valley, Hilltop and Fair Oaks leases.
COLUMBUS CITY CENTER:
Rent Commencement Date: February 1, 1999; Tenant's Work (remodeling) to be
completed on or before October 1, 1999
Term: 6 years (72 months)
Rent: $165,000 annually
Percentage Rent: 10% of Gross Sales in excess of $1,650,000
Guaranty: None
Store Design and Construction: Same design as store at Stoneridge.
General Terms: All other terms and conditions to be substantially the same
as those contained in the Sun Valley, Hilltop and Fair Oaks leases.
<PAGE>
EXHIBIT 10.09
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August 13, 1998 (the "Agreement"), by
and among AFC Franchise Acquisition Corp., a Delaware corporation
("Acquisition"), and the other parties signatories hereto (each a "Stockholder"
and collectively, the "Stockholders").
RECITALS
WHEREAS, Cinnabon International, Inc., a Delaware corporation (the
"Company"), AFC Enterprises, Inc., a Minnesota corporation and Acquisition
propose to enter into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which Acquisition would be merged (the "Merger") with and into the
Company (capitalized terms not otherwise defined herein shall have the meaning
given to such terms in the Merger Agreement); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquisition has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder
----------------------------------------------
hereby represents and warrants to Acquisition as follows:
(a) Ownership of Securities. The Stockholder is the record and beneficial
-----------------------
owner of the number of shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), set forth on Schedule I hereto. The Stockholder has
----------
sole voting power and sole power to issue instructions with respect to the
voting of the Common Stock, sole power of disposition, sole power of exercise or
conversion and the sole power to demand appraisal rights, in each case with
respect to all of the Common Stock.
(b) Power; Binding Agreement. The Stockholder has the legal capacity,
------------------------
power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, any trust agreement,
voting agreement, stockholder's agreement or voting trust. This Agreement has
been duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable against the
Stockholder in accordance with its terms. If the Stockholder is married and the
Common Stock constitutes community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes
<PAGE>
a valid and binding agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
------------
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and neither the execution
and delivery of this Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby nor compliance by the
Stockholder with any of the provisions hereof shall conflict with or result in
any breach of any applicable partnership or other organizational documents
applicable to the Stockholder, result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder's properties or assets
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
(d) No Liens. The Common Stock is now, and at all times during the term
--------
hereof will be, held by the Stockholder, or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any encumbrances arising
hereunder and except for restrictions on transfer arising under applicable
federal and state securities laws.
2. Agreement to Vote Shares. Each Stockholder hereby agrees that during
------------------------
the period commencing on the date hereof and continuing until the first to occur
of (a) the Effective Time (as defined in the Merger Agreement), (b) the
termination of the Merger Agreement in accordance with its terms or (c) October
15, 1998, at every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Stockholder shall vote or cause to be voted
all of the Common Stock that it beneficially owns on the record date of any such
vote: (i) in favor of the Merger, the adoption of the Merger Agreement and the
approval of the terms thereof and (ii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement): (1) any
merger, consolidation or other business combination involving the Company or its
subsidiaries; (2) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries that under
applicable law requires the approval of the Company's stockholders; (3) (a) any
change in the majority of the board of directors of the Company (except to fill
a vacancy or vacancies in such board of directors resulting from the death or
permanent disability of a member thereof);
-2-
<PAGE>
(b) any material change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-laws that under
applicable law requires the approval of the Company's stockholders; (c) any
other material change in the Company's corporate structure or business that
under applicable law requires the approval of the Company's stockholders; or (d)
any other action that under applicable law requires the approval of the
Company's stockholders which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
consummation of the Merger or the transactions contemplated by the Merger
Agreement or this Agreement.
3. PROXY. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS ACQUISITION AND
-----
THE PRESIDENT OF ACQUISITION AND THE TREASURER OF ACQUISITION, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF ACQUISITION, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OF ACQUISITION, AND ANY OTHER DESIGNEE OF
ACQUISITION, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S PROXY AND ATTORNEY-IN-
FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO THE COMMON STOCK SOLELY WITH RESPECT TO THE MATTERS IN CLAUSES (i)
and (ii) OF, AND SOLELY IN ACCORDANCE WITH, SECTION 2 HEREOF. THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND THE STOCKHOLDER WILL TAKE
SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY IT WITH RESPECT TO THE COMMON STOCK.
4. Covenants of the Stockholder. The Stockholder hereby agrees and
----------------------------
covenants that:
(a) Restriction on Transfer, Proxies and Noninterference. The Stockholder
----------------------------------------------------
shall not, directly or indirectly: (i) except pursuant to the terms of the
Merger Agreement or by will or the laws of descent and distribution, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Stockholder's
Common Stock; (ii) except as contemplated hereby, grant any proxies or powers of
attorney which are in any way inconsistent with the provisions of Section 3
hereof, deposit any Common Stock into a voting trust or enter into a voting
agreement with respect to any Common Stock; or (iii) take any action that would
make any representation or warranty contained herein untrue or incorrect or have
the effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement.
(b) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
--------------------------
of appraisal or rights to dissent from the Merger that such Stockholder may
have.
-3-
<PAGE>
(c) Further Assurances. From time to time, at the other party's request
------------------
and without further consideration, each party hereto shall execute and delivery
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transaction contemplated by this Agreement.
5. Delivery of Stock Certificates. Each Stockholder hereby agrees that at
------------------------------
or prior to the effective date of the Merger, it will deliver the Certificates
for the Common Stock set forth below its name on the signature pages hereto (or
an Affidavit of Loss and Indemnity Agreement therefor, in form acceptable to
Acquisition) for delivery at the Closing pursuant to the terms of the Merger
Agreement.
6. Stockholder Capacity. No person executing this Agreement who is or
--------------------
becomes during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Common Stock.
7. Assignment. The rights (but not the obligations) of Acquisition
----------
hereunder may be assigned, in whole or in part, to any direct or indirect wholly
owned subsidiary of Acquisition, to the extent and for so long as it remains a
direct or indirect wholly owned subsidiary of Acquisition. Other than as
permitted in the preceding sentence, this Agreement may not be assigned by any
party hereto without the prior written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, each
Stockholder, Acquisition and their respective successors and permitted assigns
as set forth in the first sentence of this Section 9.
8. Notices. All notices and other communications given or made pursuant
-------
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
below:
If to the Stockholder, to the Stockholder at the address appearing on
Schedule I hereto, with a copy to:
Hutchins, Wheeler & Dittmar
101 Federal Street
Boston, Massachusetts 02110
Attention: James Westra, Esq.
Facsimile: (617) 951-1295
-4-
<PAGE>
If to Acquisition:
AFC Enterprises, Inc.
Six Concourse Parkway, Suite 1700
Atlanta, Georgia 30328
Attention: Samuel N. Frankel
Facsimile: (770) 353-3028
With a copy to:
Cohen Pollock Merlin Axelrod & Tanenbaum, P.C.
2100 RiverEdge Parkway, Suite 300
Atlanta, Georgia 30328
Attention: H. Stephen Merlin, Esq.
Facsimile: (770) 858-1277
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
9. Specific Performance. The parties hereto agree that irreparable harm
--------------------
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that neither party shall raise as a defense in any action
seeking an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction that such party has an
adequate remedy at law.
10. Amendment. This Agreement may not be amended or modified, except by
---------
an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by either party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
11. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Massachusetts.
12. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
13. Termination. Except as otherwise provided herein, the covenants and
-----------
agreements contained herein with respect to the Common Stock shall terminate
upon (i) the consummation of the Merger pursuant to the terms of the Merger
Agreement or (ii) the termination of the Merger Agreement in accordance with its
terms.
-5-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
AFC FRANCHISE ACQUISITION CORP.
By:
------------------------------------
Name:
Title:
STOCKHOLDERS:
THOMAS H. LEE EQUITY PARTNERS, L.P.
By: THL Equity Advisors Limited Partnership, its
general partner
By: THL Equity Trust, its general partner
By:
------------------------------------
Name:
Title:
UBS CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not
individually, but solely as trustee under a trust
agreement dated September 9, 1989, and known as
the 1989 Thomas H. Lee Nominee Trust
By:
------------------------------------
Name: Gerald Wheeler, Vice President
-6-
<PAGE>
SCHEDULE I
Ownership of Common Stock
-------------------------
Stockholder's Name No. of Shares
------------------ -------------
Thomas H. Lee Equity 7,600,622
Partners, L.P.
1989 Thomas H. Lee 1,100,124
Nominee Trust
UBS Capital Corporation 3,401,183
-7-
