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Exhibit 6.1
SECURITIES PURCHASE AND CONTRIBUTION AGREEMENT
THIS IS A SECURITIES PURCHASE AND CONTRIBUTION AGREEMENT, dated as of
November 15, 2000 (the "Agreement"), by and among Manhattan Acquisition Corp., a
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Delaware corporation (the "Company"), Bruckmann, Rosser, Sherrill & Co. II,
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L.P., a Delaware limited partnership ("BRS"), and the entities and individuals
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other than BRS set forth on Schedule I hereto (the "Baker Investors" and,
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together with BRS, the "Investors"). As used herein, the term "Management
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Investor" means any of the Baker Investors so designated as a Management
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Investor on Schedule I hereto.
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Background
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A. The Investors as a group desire to invest an aggregate of $40
million in the Company and/or the Surviving Corporation referred to below.
B. This Agreement is being entered into in connection with the
execution and delivery of the Agreement and Plan of Merger, dated as of the date
hereof (as it may hereafter be amended, the "Merger Agreement"), between the
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Company and Il Fornaio (America) Corporation, a Delaware corporation ("Baker").
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Pursuant to the Merger Agreement, the Company will be merged with and into Baker
(the "Merger"), and Baker will be the surviving corporation in such Merger (the
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"Surviving Corporation").
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C. Subject to the terms hereof, the investment will be effected (i)
in the case of a Baker Investor, through the Investor's electing to receive
securities of the Surviving Corporation in the Merger, or through such
Investor's exchange of shares of Baker Common Stock (as defined below)
immediately prior to the Merger for shares of Baker Preferred Stock, which
shares of Baker Preferred Stock will be converted in the Merger into securities
of the Surviving Corporation, or (ii) in the case of any Investor, through the
purchase immediately prior to the Merger of the Company's securities, which may
consist of one or more of the following: junior subordinated debentures,
preferred stock, common stock and/or other equity securities (hereinafter, the
"Securities"), which Securities will be converted in the Merger into securities
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of the Surviving Corporation.
Terms
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In consideration of the mutual representations, warranties and
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
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ARTICLE I
PURCHASE OF SECURITIES
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1.1. Rollover of Shares and Options.
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(a) Subject to the terms and conditions hereof, and unless BRS
otherwise determines in accordance with Section 1.1(b) below, each of the Baker
Investors will elect to receive (i) pursuant to Section 1.6 of the Merger
Agreement in lieu of Merger Consideration having a value equal to the purchase
price set forth next to such Investor's name on Schedule I hereto, or (ii)
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pursuant to Section 1.11 of the Merger Agreement in lieu of cash payments
otherwise due under the Merger Agreement upon cancellation of options held by
such Investor having a value equal to the purchase price set forth next to such
Investor's name on Schedule I hereto, or (iii) pursuant to a combination
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thereof, securities of the Surviving Corporation of the same type and in the
same amounts that such Investor would have received had such Investor purchased
Securities in accordance with Section 1.1(b) below and paid for such Securities
in accordance with Section 1.2 below (and such Securities subsequently had been
converted to securities of the Surviving Corporation in accordance with the
Merger Agreement). Alternatively, to the extent BRS so requests, each of such
Baker Investors will, immediately prior to the Merger, exchange a portion of the
shares of common stock, par value $.001 per share ("Baker Common Stock"), of
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Baker held by such Investor having a value equal to the purchase price set
forth next to such Investor's name on Schedule I hereto for shares of preferred
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stock, par value $.001 per share ("Baker Preferred Stock"), of Baker created
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under Section 1.4(a) of the Merger Agreement and shall further provide notice to
Baker that such shares of Baker Preferred Stock shall be converted in the
Merger into securities of the Surviving Corporation of the same type and in the
same amounts that such Investor would have received had such Investor purchased
Securities in accordance with Section 1.1(b) below and paid for such Securities
in accordance with Section 1.2 below with the shares of Common Stock so
exchanged (and such Securities subsequently had been converted to securities of
the Surviving Corporation in accordance with the Merger Agreement).
(b) Subject to the terms and conditions set forth herein, at the
Closing (as defined in Section 1.3), the Company will issue and sell to each
Investor who is not a Baker Investor, and each such Investor will purchase,
Securities. In addition, if BRS requests (and in lieu of the transactions
contemplated by Section 1.1(a) above), subject to the terms and conditions set
forth herein, at the Closing, the Company will issue and sell to each of the
Baker Investors, and each of the Baker Investors will purchase, Securities. The
purchase price to be paid by any Investor purchasing Securities under this
Section 1.1(b) for the Securities so purchased will be as set forth opposite the
applicable Investor's name on Schedule I hereto.
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(c) The per security purchase price for any type, series or
class of Securities purchased under Section 1.1(b) shall be the same for all
Investors. Unless otherwise agreed by the Company and the applicable Investor
purchasing Securities hereunder, the amount of each type, series or class of
Securities purchased by each Investor hereunder other than BRS
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shall be determined by reference to the amount of each of such type, class or
series purchased by BRS hereunder. That is, unless otherwise agreed by the
Company and the Investor, the proportion of each Investor's aggregate purchase
price set forth next to its name on Schedule I that goes to purchasing each
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type, series or class of Securities shall equal (on a percentage basis) the
proportion of BRS's aggregate purchase price set forth on Schedule I (as it may
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be adjusted in accordance with the terms hereof) that goes to purchasing each
such type, class or series.
1.2. Purchase Price. At the Closing, each Investor (other than a Baker
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Investor) will pay the purchase price for Securities purchased by it, him or her
under Section 1.1(b) by wire transfer of immediately available funds to an
account designated by the Company. At the Closing, each of the Baker Investors
will pay the purchase price for the Securities purchased by it, him or her under
Section 1.1(b) (a) by consummating the transfer and assignment to the Company of
shares of Baker Common Stock having an aggregate fair market value equal to the
aggregate purchase price set forth beside such Investor's name on Schedule I or
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(b) through the cancellation of options to purchase shares of Baker Common Stock
having a fair market value (i.e., the difference between the fair market value
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of the shares purchasable thereunder and the aggregate exercise price) equal to
the amount of the aggregate purchase price set forth next to such Investor's
name on Schedule I (it being understood such cancellation under this Section
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1.2(b) in return for Securities will be in lieu of (rather than in addition to)
any right to receive cash under Section 1.11 or Section 5.8 of the Merger
Agreement upon cancellation of such options), (c) by wire transfer of
immediately available funds to an account designated by the Company or (d) by a
combination of (a), (b) and (c). The fair market value of Baker Common Stock
(purchasable under an option or otherwise) will be deemed to be $14.00 per share
for all purposes of this Agreement.
1.3. Closing. The closing of the purchase and sale of the Securities
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contemplated hereby (the "Closing") will take place immediately preceding the
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closing of the Merger as determined by Section 1.12 of the Merger Agreement or
on such other date as may be determined by the Company upon not less than 5 days
prior written notice to the Investors (the date such Closing occurs, the
"Closing Date"). At the Closing, each of the Investors will execute a
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Securities Holders Agreement (the "Securities Holders Agreement") and a
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Registration Rights Agreement (the "Registration Rights Agreement") having the
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terms set forth on Schedule II hereto.
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1.4. Baker Securities. In order to facilitate any sale and assignment
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to the Company of any shares of Baker Common Stock and options to purchase Baker
Common Stock by the Baker Investors contemplated hereby, if requested by the
Company, each Baker Investor shall deliver within five business days after such
request one or more certificates representing all of the shares of Baker Common
Stock and options to purchase Baker Common Stock to be cancelled in exchange for
Securities, together with stock powers or other instruments duly endorsed or
otherwise sufficient for transfer of such certificates. The Company shall hold
such instruments in escrow pending the Closing Date. On the Closing Date, the
Company is authorized to present such instruments to the transfer agent for
Baker and instruct the transfer agent to register the shares of Baker Common
Stock in the name of the Company or its designee
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(or, in the case of the certificates representing options to purchase Baker
Common Stock, to mark and record such options as cancelled, as contemplated by
the Merger Agreement).
1.5. Representations, Warranties and Covenants of the Management
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Investors, the Baker Investors and the Company.
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(a) Each of the Management Investors, the Baker Investors and
the Company shall use reasonable efforts to cooperate to enhance the tax
efficiency of the purchase of Securities contemplated hereby and to achieve
treatment of the transactions contemplated by the Merger Agreement as a
recapitalization for financial reporting purposes, which will include providing
that any cancellation of options to purchase Baker Common Stock used to purchase
Securities under Section 1.2, or any exchange of options to purchase Baker
Common Stock under Section 1.1(a) above, will be in exchange for options to
purchase capital stock of the Company or the Surviving Corporation, as
appropriate, or deferred compensation or similar arrangements designed not to
result in current taxation (for federal income tax purposes) in respect of such
surrendered options to the holder thereof.
(b) Each of the Management Investors and the Baker Investors
represent and warrant to the Company that no registration rights that may
pertain to any of the securities of Baker that are tendered by such Management
Investor or such Baker Investor, as the case may be, as consideration under this
Agreement shall survive the Closing and no such registration rights shall
pertain to any of the Securities of the Company.
(c) Each of the Management Investors and the Baker Investors
acknowledges that an affiliate of BRS will be receiving from the Surviving
Corporation following the Merger a per annum management fee equal to the greater
of (x) $150,000 or (y) 1% of the Company's or the Surviving Corporation's EBITDA
(as such term is defined in the Company's or the Surviving Corporation's senior
credit agreement).
1.6. Conditions to Investor's Obligations. The obligation of each
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Investor to purchase and pay for the Securities at the Closing is subject to the
satisfaction on or prior to the Closing of the following conditions:
(a) The Company shall have delivered to each of the Investors
which is purchasing Securities hereunder certificates for the Securities so
purchased.
(b) No preliminary or permanent injunction or order, decree or
ruling of any nature issued by any court or governmental agency of competent
jurisdiction, nor any statute, rule, regulation or executive order promulgated
or enacted by any United States federal, state or local governmental authority,
shall be in effect, that would prevent the consummation of the transactions
contemplated by this Agreement or the Merger Agreement.
(c) All of the conditions to effecting the Merger under Article
VI of the Merger Agreement (including the debt financing condition set forth in
Section 6.2(e), but excluding the conditions set forth in Section 6.3) shall
have been fulfilled or waived in
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accordance with the Merger Agreement; provided, however, that Section 6.2(e) of
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the Merger Agreement shall be deemed to have been satisfied if the debt
financing referred to therein is not available solely because of the refusal or
inability of the Investors to provide in the aggregate $40,000,000 of equity
financing to the Company (including by delivery of Baker Common Stock or options
to purchase shares of Baker Common Stock as permitted by Section 1.2).
1.7. Conditions to the Company's Obligations. The obligations of the
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Company to issue and sell the Securities to each Investor as set forth herein at
the Closing are subject to the satisfaction on or prior to the Closing of the
following conditions:
(a) Each of the Investors purchasing Securities hereunder shall
have paid or shall pay concurrently the purchase price for the Securities
required to be paid by it pursuant to this Article I.
(b) No preliminary or permanent injunction or order, decree or
ruling of any nature issued by any court or governmental agency of competent
jurisdiction, nor any statute, rule, regulation or executive order promulgated
or enacted by any United States federal, state or local governmental authority,
shall be in effect, that would prevent the consummation of the transactions
contemplated by this Agreement or the Merger Agreement.
(c) All of the conditions to effecting the Merger under Article
VI of the Merger Agreement (including the debt financing condition set forth in
Section 6.2(e), but excluding the conditions set forth in Section 6.3) shall
have been fulfilled or waived in accordance with the Merger Agreement; provided,
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however, that Section 6.2(e) of the Merger Agreement shall be deemed to have
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been satisfied if the debt financing referred to therein is not available solely
because of the refusal or inability of the Investors to provide in the aggregate
$40,000,000 of equity financing to the Company (including by delivery of Baker
Common Stock or options to purchase shares of Baker Common Stock as permitted by
Section 1.2).
(d) Each of the Investors shall have executed the Securities
Holders Agreement and the Registration Rights Agreement.
ARTICLE II
MISCELLANEOUS
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2.1. Definitions. Capitalized terms used but not otherwise defined in
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this Agreement have the meanings assigned to such terms in the Merger Agreement.
2.2. Amendment and Modification.
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(a) It is understood and agreed that the Company shall have the
right, following execution of this Agreement, to amend this Agreement by adding
additional parties to this Agreement (and Schedule I hereto) who desire to
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receive shares of the Surviving Corporation pursuant to the Merger, and,
effective upon any such amendment, such additional
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parties will be considered "Investors" for all purposes of this Agreement;
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provided, however, that no such party will be deemed to be a "Baker Investor"
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unless such party owns shares of Baker Common Stock (as defined in Section 1.2),
or options to purchase such shares, on or after the date hereof (but prior to
the Closing), and no such party will be deemed to be a "Management Investor"
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unless such party (i) is an employee of Baker on or after the date hereof (but
prior to the Closing) and (ii) owns shares of Baker Common Stock, or options to
purchase such shares, on or after the date hereof (but prior to the Closing). In
the event any such party is added as an Investor under this Agreement, the
aggregate amount reflected on Schedule I as being invested in the Company by BRS
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will be reduced by the amount proposed to be invested or rolled over by such
additional Investor.
(b) Except for amendments contemplated by paragraph (a) above,
which may be unilaterally effected by the Company in its discretion, any of the
provisions of this Agreement may be amended or modified pursuant to a writing
executed by the Company and those Investors who together will be purchasing a
majority of the equity interests of the Company to be purchased hereunder (based
on the total dollar amounts committed by such Investors as reflected on Schedule
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I); provided, however, that (i) Sections 1.5, 2.3 and 2.12 cannot be amended in
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a manner adverse in any material respect to the Management Investors, and (ii)
no amendment of the terms set forth on Schedule II that adversely affects the
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Management Investors in a manner different from other Investors will be
effective, in either case without the written consent of those Management
Investors (as such group is constituted on the date of this Agreement) who will
be purchasing a majority of the equity interests of the Company to be purchased
hereunder (based on the total dollar amounts committed by such Management
Investors as reflected on Schedule I).
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(c) Any party hereto may (i) extend the time for the performance
of any of the obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties of the other parties
hereto contained herein or in any document delivered pursuant hereto and (iii)
waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party.
(d) The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, any custom or practice of the parties at
variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
2.3. Termination. This Agreement will terminate and be of no further
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force and effect (i) by the written mutual consent of the parties hereto, (ii)
upon termination of the Merger Agreement in accordance with its terms or (iii)
unless otherwise determined by BRS, on May 31, 2001. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
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2.4. Assignment; Successors and Assigns; Entire Agreement. This
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Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns,
executors and administrators, but no party hereunder may assign its rights or
obligations hereunder without the prior written consent of BRS. This Agreement
constitutes the entire agreement and supersedes any and all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
2.5. Severability. In the event that any provision of this Agreement
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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.
2.6. Notices. All notices provided for or permitted hereunder shall be
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made in writing by hand-delivery, registered or certified first-class mail,
telex, fax 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):
If to the Company:
c/o Bruckmann, Rosser, Sherrill & Co., L.P.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Fax: 212-521-3799
with a copy to:
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Carmen J. Romano, Esq.
Fax: 215-994-2222
If to any Investor to its address as listed 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 faxed; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
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2.7. Governing Law. The validity, performance, construction and
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effect of this Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York, regardless of the laws that might
otherwise govern under principles of conflicts of law applicable thereto.
2.8. Headings. The headings in this Agreement are for convenience of
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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.
2.9. Counterparts. This Agreement may be executed in two or more
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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.
2.10. Further Assurances. Each party shall cooperate and take such
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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.
2.11. Pronouns. Whenever the context may require, any pronouns used
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herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
2.12. Maximum Liability. The maximum liability of any Investor for a
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breach of this Agreement shall be limited to the amount set forth next to its
name on Schedule I hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MANHATTAN ACQUISITION CORP.
By: /s/ Harold O. Rosser
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Name: Harold O. Rosser
Title: President
BRUCKMANN, ROSSER, SHERRILL & CO. II, L.P.
By BRSE LLC, its general partner
By: /s/ Harold O. Rosser
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Name: Harold O. Rosser
Title: Managing Director
/s/ Laurence B. Mindel
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Laurence B. Mindel
Address: 86 San Carlos Ave.
Sausalito, CA 94965
/s/ Michael J. Hislop
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Michael J. Hislop
Address: 20 Lupine Court
San Rafael, CA 94901
/s/ Michael Beatrice
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Michael Beatrice
Address: 36 Mahogany Drive
San Rafael, CA 94903
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/s/ Peter Hausback
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Peter Hausback
Address: 2860 Jackson St.
Alameda, CA 94501
/s/ Warren Hellman
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Warren Hellman
Address: 3415 Pacific Ave.
San Francisco, CA 94118
/s/ Dino Cortopassi
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Dino Cortopassi
Address: 11280 N. Alpine Rd.
Stockton, CA 95212
/s/ Scott Hedrick
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Scott Hedrick
Address: P.O. Box 1111
Ross, CA 94957
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Schedule I
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Investors and Purchase Price
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Name of Investor Purchase Price
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Bruckmann, Rosser, Sherrill & Co. II, L.P. $30,730,535
Larry Mindel (1) (2) $ 2,000,000
Mike Hislop (1) (2) $ 2,900,000
Mike Beatrice (1) (2) $ 396,398
Peter Hausback (1) (2) $ 25,000
Warren Hellman (1) (2) $ 1,947,395
Dino Cortopassi (1) (2) $ 1,740,241
Scott Hedrick (1) (2) $ 260,431
(1) Denotes Baker Investor
(2) Denotes Management Investor
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Schedule II
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Terms of Securities Holders and Registration Rights Agreements
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Restrictions on Transfer: Except for Permitted Transfers, securities of
the Surviving Corporation may not be
transferred (including by assignment, pledge,
hypothecation, by operation of law, proxy or
voting agreement or similar arrangement)
without the prior written consent of the
holders of 50% of the then outstanding Common
Stock of the Surviving Corporation (the
"Requisite Holders").
Permitted Transfers: Permitted Transfers will include (i) sales
pursuant to an Approved Sale, (ii) sales
pursuant to the exercise of Tag-Along Rights,
(iii) sales or other transfers to affiliated
individuals or entities (in respect of
stockholders who are entities) or for estate
planning purposes or (iv) pursuant to
exercise of registration rights or, following
an Initial Public Offering, sales under Rule
144 under the Securities Act.
Approved Sale: In the event the Requisite Holders approve
the sale of the Company, each holder of
securities of the Surviving Corporation will
consent to and cooperate with the sale and,
if such sale is structured as a sale of
stock, will sell its shares of stock and
other equity securities on the terms approved
by the Requisite Holders.
Tag Along Rights: Subject to customary exceptions, BRS will not
sell any shares of Common Stock without
offering other stockholders of the Surviving
Corporation the opportunity to sell shares on
a pro rata basis and on equal terms.
Voting Agreement: Each holder of securities will agree to vote
all shares of voting capital stock or other
voting securities so as to maintain a board
of directors of
<PAGE>
the Surviving Corporation (and any
subsidiaries) having a majority of directors
designated by BRS.
Vesting: Shares of Preferred or Common Stock (and/or
options to purchase such shares or other
securities) granted to employee investors
(not to include any shares or options
purchased under Section 1.1 of this
Agreement) will be subject to vesting
restrictions to include, in the case of
restricted shares, a purchase option in favor
of the Surviving Corporation in the event of
termination of the investor's employment at a
price equal to the investor's original cost
(or, if lower, fair market value (determined
by the Surviving Corporation in good faith))
with respect to unvested shares.
Management Buy-Back: The Surviving Corporation will have the
option to purchase any vested securities of
an employee investor following termination of
employment for a fair market value price
(determined by the Surviving Corporation in
good faith, it being understood that any such
valuation will be without any discount based
on minority ownership).
Right of First Refusal: The Surviving Corporation will have a right
of first refusal on any transfer of
securities by an employee investor, except
for Permitted Transfers.
Initial Public Offering: An Initial Public Offering will be defined as
an underwritten public offering of shares of
Common Stock by the Surviving Corporation
(other than an offering to employees or
existing investors or in connection with any
acquisition or business combination, or an
offering of a combination of debt and equity
securities where the aggregate consideration
received by the Surviving Corporation in
respect of such equity securities does not
exceed 20% of the aggregate consideration
received by the Surviving Corporation in such
offering) where the Surviving Corporation
receives aggregate net proceeds of not less
than $30,000,000.
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Demand Registration Rights: BRS will have demand registration rights.
Piggy-Back Registration Rights: Following an Initial Public Offering, all
Investors will have piggyback registration
rights having equal priority in the event
of a cutback by the managing underwriter
(except that if the managing underwriter
determines such a cutback is reasonably
required for the success of the offering,
shares of employee investors will be
cutback before shares of other investors).
Lock-Up: In the event of any public offering by the
Surviving Corporation, no investor will
sell or otherwise transfer (including by
pledge, short sale or other hedging
transaction) any equity securities for a
period of 180 days or such shorter period
as is agreed to by the underwriter for
such offering.
Modifications for Financing: The foregoing shareholder arrangements may
be modified at the Company's discretion in
connection with any debt financing
incurred by the Company, including to
provide for redemption rights in respect
of warrants issued to lenders. It is
understood that some of the above
provisions may not apply to equity
securities issued to the Company's
lenders.
