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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D/A1
Under the Securities Exchange Act of 1934
(Amendment No. 1)
FRESH CHOICE, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
0003580321
(CUSIP Number)
DAVID M. DEAN
777 MAIN STREET, SUITE 2100
FORT WORTH, TX 76102
(817) 878-0442
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
AUGUST 11, 1997***
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
** The total number of shares reported herein is 2,198,259 shares of Common
Stock, which, assuming pursuant to Rule 13d- 3(d)(1)(i)that 6,165,025 shares
are deemed outstanding, constitute approximately 35.7% of the total number of
shares deemed outstanding. All ownership percentages set forth herein assume
that there are 5,668,625 shares actually outstanding.
*** Information reported in this Amendment previously has been reported in
Proxy Statements of Crescent Real Estate Equities Company: see Item 6.
(Continued on following page(s))
Exhibit Index for this Schedule 13D begins on page 6.
Page 1 of 18 Pages
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<TABLE>
<S> <C> <C>
CUSIP No. 0003580321 13D Page 2 of 18 Pages
- - --------------------------------------------------------------------------------
1) Names of Reporting Persons/S. S. or I. R. S. Identification Nos. of Above
Persons Crescent Real Estate Equities Limited Partnership
- - --------------------------------------------------------------------------------
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
- - --------------------------------------------------------------------------------
3) SEC Use Only
- - --------------------------------------------------------------------------------
4) Source of Funds (See Instructions) WC -- see Item 3.
- - --------------------------------------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Item
2(d) or 2(e) [ ]
- - --------------------------------------------------------------------------------
6) Citizenship or Place of Organization Delaware
- - --------------------------------------------------------------------------------
Number of (7) Sole Voting Power 2,198,259 (1)
Shares Bene- ---------------------------------------------------------
ficially (8) Shared Voting Power -0-
Owned by Each ---------------------------------------------------------
Reporting (9) Sole Dispositive Power 2,198,259 (1)
Person With ---------------------------------------------------------
(10) Shared Dispositive Power -0-
- - --------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,198,259 (1)
- - --------------------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
- - --------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11) 35.7% (2)
- - --------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions) PN
- - --------------------------------------------------------------------------------
</TABLE>
(1) But see Items 5 and 6.
(2) Assumes, pursuant to Rule 13d-3(d)(1)(i), that 6,165,025 shares of Common
Stock are deemed outstanding.
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CUSIP NO. 0003580321 13D Page 3 of 18 Pages
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the Rules and
Regulations under the Securities Act of 1933 as amended, the undersigned hereby
amends its Schedule 13D dated September 23, 1996, relating to the Common Stock
("Common Stock") of Fresh Choice, Inc.("Issuer"):
ITEM 1. SECURITY AND ISSUER
No material change.
ITEM 2. IDENTITY AND BACKGROUND
Item 2 is amended and restated in its entirety as follows:
This statement is being filed by Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("Crescent"). Crescent is a
Delaware limited partnership. The address of Crescent's executive offices is
777 Main Street, Suite 2100, Fort Worth, Texas 76102. Crescent is the
operating partnership of Crescent Real Estate Equities Company, a Texas real
estate investment trust ("CEI").
CEI is a Texas real estate investment trust. The address of CEI's
principal executive offices is 777 Main Street, Suite 2100, Fort Worth, Texas
76102. CEI is a fully integrated real estate company operated as a real estate
investment trust which owns a portfolio of real estate assets located primarily
in metropolitan submarkets in Texas and Colorado. CEI owns its assets and
carries on its operations and other activities directly through Crescent and
its subsidiaries. Except as set forth in the following proviso, the
information regarding the executive officers, trust managers and controlling
persons of CEI is set forth under the captions "Proposal No. 1 Election of
Trust Managers - Board of Trust Managers," "Proposal No. 1 Election of Trust
Managers - Trust Managers and Executive Officers," and "Voting Securities and
Principal Shareholders" in the Proxy Statement for Annual Meeting of
Shareholders of CEI held on June 9, 1997 and is incorporated by reference
herein; provided, that that material is supplemented by Exhibit 8 to this
Amendment.
The sole general partner of Crescent is Crescent Real Estate Equities,
Ltd., a Delaware corporation (the "Crescent GP"). Crescent GP is a wholly
owned subsidiary of CEI. Gerald W. Haddock, the President and Chief Executive
Officer of CEI, is the sole director of Crescent GP. Except as set forth in
the following proviso, information regarding the executive officers of Crescent
GP is set forth under the caption "Proposal No. 1 Election of Trust Managers -
Trust Managers and Executive Officers" in the Proxy Statement for Annual
Meeting of Shareholders of CEI held on June 9, 1997 and is incorporated by
reference herein; provided, that that material is supplemented by Exhibit 8 to
this Amendment.
Crescent has not, nor have any of the executive officers, directors or
controlling persons of Crescent or any of the executive officers, directors or
controlling persons of such controlling persons, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Each natural person identified in this Item 2 is a citizen of the
United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is amended by adding at the end thereof the following:
As more fully described herein, Crescent acquired for $100 cash an
option to purchase 496,400 shares of Issuer's Common Stock. The source of such
funds was Crescent's working capital.
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CUSIP NO. 0003580321 13D Page 4 of 18 Pages
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is amended by adding at the end thereof the following:
Reference is made to Item 6 for information concerning a stock option
on 496,400 shares of Common Stock acquired by Crescent from Richard E.
Rainwater and for information about the partial assignment by Crescent to
Rainwater, Inc. of Crescent's option to purchase shares of Series C Stock from
Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 is amended and restated in its entirety as follows:
(a) The Series B Stock acquired by Crescent from Issuer on
September 13, 1996, and owned by Crescent is convertible into Common Stock of
the Issuer on a one-for-one basis; accordingly, Crescent is the beneficial
owner of 1,187,906 shares of the Common Stock which may be acquired upon
conversion of 1,187,906 shares of Series B Stock.
In addition, the Issuer granted Crescent on September 13, 1996, a
three-year option to purchase up to 593,953 shares of Series C Non-Voting
Participating Convertible Preferred Stock (the "Series C Stock") at an exercise
price of $6.00 per share. As more fully described in Item 6, Crescent on
August 11, 1997, partially assigned its interest in such option to Rainwater,
Inc. in consideration of services rendered; consequently Crescent now owns an
Option to acquire 513,953 shares of Series C Stock (the "Series C Stock
Option"). The Series C Stock Option is immediately exercisable. If the Series
C Stock Option were exercised, the shares of the Series C Stock received would
be immediately convertible into Common Stock on a one-for-one basis.
Accordingly, Crescent is the beneficial owner of 513,953 shares of the Common
Stock which may be acquired upon conversion of 513,953 shares of Series C Stock
that may be acquired upon exercise of the Series C Stock Option.
And, by virtue of the currently exercisable stock option acquired from
Richard Rainwater August 11, 1997, and more fully described in Item 6, Crescent
is the beneficial owner of 496,400 shares of Common Stock which may be acquired
upon exercise of such option.
(The shares of the Series B Non-Voting Participating Convertible
Preferred Stock are also convertible on a one-for-one basis into shares of the
Issuer's Series A Voting Participating Convertible Preferred Stock, which are
convertible into shares of Common Stock on a one-for-one basis. The exercise
of such conversion rights would not result in Crescent's beneficially owning
any additional shares of Common Stock.)
Based upon the foregoing, Crescent beneficially owns an aggregate of
2,198,259 shares of the Common Stock, all of which underlie options or
convertible securities. Assuming pursuant to Rule 13d-3(d)(1)(i) that
6,165,025 shares of Common Stock are outstanding, Crescent is the beneficial
owner of approximately 35.7% of the outstanding shares of Common Stock.
(b) Crescent has sole voting and dispositive power with respect to
1,187,906 shares of Common Stock underlying an identical number of shares of
Series B Stock and 513,953 shares of Common Stock underlying an identical
number of shares of Series C Stock underlying the Series C Stock Option.
Unless and until Crescent purchases the 496,400 shares of Common Stock
underlying the option acquired from Mr. Rainwater, Crescent has no power to
vote or to dispose of such shares: the power to vote and the power to dispose
of such shares is expressly reserved to Richard Rainwater under the terms of
the Rainwater Option.
As provided in the respective Certificate of Designation for the
Series B Stock and the Series C Stock, the shares of the Series B Stock may not
be converted into either shares of Series A Stock or Common Stock, and the
shares of the Series C Stock that Crescent may acquire upon exercise of the
Option may not be converted into shares of Common Stock, in each case, to the
extent that immediately after any such conversion CEI would be treated as
owning more than 10 percent of the outstanding voting securities of the Issuer
for purposes of Section 856(c)(5) of the Internal Revenue Code of 1986, as
amended. Any exercise or purported exercise of such conversion rights in
violation of these restrictions would be void ab initio.
(c) During the past 60 days preceding this Amendment No. 1,
Crescent has not effected any transactions in Common Stock except as described
in Item 6.
(d) No person other than Crescent has the right to receive or to
direct the receipt of dividends from,or proceeds from the sale of, the shares
reported in this Schedule 13D, except for the 496,400 shares of Common Stock
which Crescent has the right to acquire from Richard Rainwater under the
above-referenced option. With respect to such 496,400 shares of Common Stock,
Crescent has no right to dividends on such shares unless and until Crescent
purchases such shares following exercise of such option; as more fully
described in Item 6, Crescent has the right to receive a portion of proceeds
from the sale of such shares by Mr. Rainwater.
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CUSIP NO. 0003580321 13D Page 5 of 18 Pages
(e) It is inapplicable for the purposes herein to state the date
on which Crescent ceased to be the beneficial owner of more than five percent
(5%) of the outstanding shares of Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 is amended by adding at the end thereof the following:
The summary set forth below of certain transactions and agreements
does not purport to be a complete description of, and is qualified in its
entirety by reference to, the provisions of various agreements and documents
attached as Exhibits to this Schedule 13D and incorporated herein by reference
for all purposes.
As previously disclosed in CEI's proxy statements for its 1996 and
1997 Annual Meetings of Shareholders, Crescent, in connection with its
agreement to purchase the Series B Stock and the Series C Stock Option from
Issuer, anticipating acquiring the Option (as defined below) from Mr. Rainwater
and granting Rainwater, Inc. a partial assignment (to the extent of 80,000
shares) of the Series C Stock Option. Instruments effecting such transactions
were finalized, executed and delivered August 11, 1997, as more particularly
described below.
On August 11, 1997, Crescent entered into a Call Option Agreement (the
"Option Agreement") with Richard E. Rainwater whereby Mr. Rainwater granted to
Crescent an option (the "Option"), exercisable at any time through September
12, 2006, to purchase all, but not less than all, of the 496,400 shares of
Common Stock owned by Mr. Rainwater(the "Shares") at Mr. Rainwater's investment
cost in the Shares ($3,645,191, plus incidental expenses, plus Mr. Rainwater's
cost of funds). During the pendency of the Option, Mr. Rainwater retains sole
beneficial ownership of the Shares (i. e., exclusive power to vote, hold,
sell, pledge or otherwise dispose of the Shares) unless and until the Shares
are sold. Prior to selling any of the Shares, Mr. Rainwater must give Crescent
notice of his intention to sell so that Crescent may exercise the Option; if
Crescent fails to exercise the Option within two business days, Mr. Rainwater
may sell those Shares but must remit to Crescent the cash proceeds from the
sale, net of his investment cost in the Shares sold.
Also on August 11, Crescent entered into an Agreement of Assignment
with Mr. Rainwater's wholly owned corporation, Rainwater, Inc. ("RI"), whereby
Crescent partially assigned (to the extent of 80,000 shares) to RI its Series C
Stock Option. To Crescent's knowledge and belief, RI thereupon further
assigned its interest in such Series C Stock Option to two individuals
associated with RI.
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CUSIP NO. 0003580321 13D Page 6 of 18 Pages
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Preferred Stock Purchase Agreement dated as of April
26, 1996, by and between Crescent Real Estate Equities
Limited Partnership and Fresh Choice, Inc., as
amended. (Previously Filed)
Exhibit 2 - Certificate of Designation of Series A Voting
Participating Convertible Preferred Stock of the
Issuer. (Previously Filed)
Exhibit 3 - Certificate of Designation of Series B Non-Voting
Participating Convertible Preferred Stock of the
Issuer. (Previously Filed)
Exhibit 4 - Certificate of Designation of Series C Non-Voting
Participating Convertible Preferred Stock of the
Issuer. (Previously Filed)
Exhibit 5 - Registration Rights Agreement dated as of September 13,
1996, by and between Crescent Real Estate Equities
Limited Partnership and Fresh Choice, Inc.
(Previously Filed)
Exhibit 6 - Call Option Agreement dated August 11, 1997, between
Crescent Real Estate Equities Limited Partnership and
Richard E. Rainwater, at page 8.
Exhibit 7 - Agreement of Assignment dated August 11, 1997, between
Crescent Real Estate Equities Limited Partnership and
Rainwater, Inc., at page 15.
Exhibit 8 - Supplemental Information in response to Item 2, at
page 18.
Exhibit 9 - Information set forth under captions
"Proposal No. 1 Election of Trust Managers -
Board of Trust Managers," "Proposal No. 1
Election of Trust Managers - Trust Managers and
Executive Officers," and "Voting Securities and
Principal Shareholders" in Proxy Statement for 1997
Annual Meeting of Shareholders of Crescent Real Estate
Equities Company held June 9, 1997 (incorporated by
reference to such definitive proxy statement, filed
May 13, 1997, File No. 001-13038).
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CUSIP NO. 0003580321 13D Page 7 of 18 Pages
After reasonable inquiry and to the best of the knowledge and belief
of the undersigned, the undersigned certifies that the information set forth in
this statement is true, complete and correct.
Dated November 5, 1997.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.
General Partner
By: /s/ Bruce A. Picker
-----------------------------------
Bruce A. Picker, Vice President
and Treasurer
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EXHIBIT 6
CALL OPTION AGREEMENT
This Call Option Agreement ("Agreement") is made the 11th day of
August, 1997 (the "Effective Date"), by and between Richard E. Rainwater
("RER") and Crescent Real Estate Equities Limited Partnership, a Delaware
limited partnership ("Crescent").
RECITALS
A. RER on the date of this Agreement owns beneficially and of
record 496,400 shares (the "Shares") of Common Stock of Fresh Choice, Inc.
("Issuer").
B. RER acquired the Shares through open market purchases at an
aggregate purchase price of $3,645,191 (the "Original Cost") and a per share
average purchase price of slightly more than $7.34. Substantially all of the
Shares were purchased by RER prior to April 29, 1995.
C. On September 13, 1996, (i) Crescent purchased from Issuer
1,187,906 shares of the Issuer's Series B Non-Voting Participating Convertible
Preferred Stock and (ii) Issuer granted Crescent a three year option to
purchase up to 593,953 shares of Series C Non-Voting Participating Convertible
Preferred Stock at an exercise price of $6 per share.
D. Crescent has asked RER to grant it an option to purchase all
of the Shares at RER's investment cost in the Shares (including all incidental
expenses incurred in connection with acquisition and holding of the Shares and
granting the option pursuant to this Agreement). RER is willing to grant
Crescent an option to purchase the Shares in consideration of and subject to
Crescent's payment of a modest cash consideration upon execution of this
Agreement if RER retains the right to otherwise sell the Shares, free and clear
of the option, and thereby recover his investment cost in the Shares. Crescent
is willing that RER have the right to sell the Shares to third persons or in
open market sales so that he can recover his investment in the Shares so long
as Crescent retains the economic benefit of appreciation in the value of the
Shares above the exercise price.
F. Neither the grant of the Option nor anything else in this
Agreement will affect RER's beneficial ownership of the Shares except as
explicitly provided in this Agreement and, unless and until Crescent purchases
the Shares from RER pursuant to the exercise of the option, RER will continue
to have sole power to vote and to dispose of the Shares, to the exclusion of
Crescent; nor will anything contained in this Agreement constitute an agreement
or promise by or bind the parties to act together with respect to acquiring,
holding or disposing of the Shares or any other securities of Issuer.
Now, therefore, in consideration of the foregoing premises, the mutual
covenants hereinafter set forth, and in consideration of the payment by
Crescent to RER of One Hundred Dollars ($100.00), the receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
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1. Grant of Option. Subject to the terms and conditions herein
set forth, RER hereby grants to Crescent an option (the "Option") to purchase,
at any time from and after the Effective Date and not later than the Expiration
Date (as defined below), all but not less than all of the Shares owned on the
Exercise Date (as defined below) by RER (the "Option Shares"). In consideration
for the grant of the Option, Crescent has paid to RER the sum of $100.
2. RER's Retention of Investment Power; Consequences of Sales
Outside Option.
(a) The Option will not attach to, encumber or restrict the
transferability of any of the Shares. RER will continue to have the
right to hold, sell, pledge or otherwise dispose of any or all of the
Shares or any interests therein at his discretion, subject only to
compliance with the terms of Paragraph 2(b). Any Shares sold by RER
shall be transferred free and clear of the Option and any claim made
under this Agreement by Crescent.
(b) Unless Crescent shall have previously exercised the
Option, RER agrees that whenever during the Option Period he makes a
decision to sell any of the Shares then, at least three business days
prior to effecting such sale, he will give Crescent oral or written
notice (a "Sale Notice") of his intention to sell, identifying in the
Sale Notice the approximate number of Option Shares he intends to sell
(which may be stated as a range with minimum and maximum numbers) and
the intended or estimated date or dates of sale. If Crescent, not
later than 5 p. m. Fort Worth, Texas time on the second business day
immediately following the Sale Notice Date (the "Exercise Deadline"),
exercises the Option in accordance with the terms of this Agreement,
then RER shall become obligated to sell the Option Shares to Crescent
pursuant to the terms of this Agreement and Crescent shall become
obligated to purchase the Option Shares pursuant to the terms of this
Agreement. If Crescent does not exercise the Option prior to the
Exercise Deadline, then RER may (but will not be obligated to) sell
the number of Shares set forth in the Sale Notice on or about the date
or dates of sale set forth in the Sale Notice.
(c) Except for the sale of Option Shares to Crescent pursuant
to its exercise of the Option, whenever during the Option Period RER
sells Shares he shall promptly pay over to Crescent the Net Gain
Proceeds actually received by him from such sale. "Net Gain Proceeds"
from any sale will mean the excess, if any, of (i) cash proceeds
actually received by RER from that sale over (ii) an amount calculated
by multiplying the Exercise Price (as then in effect in accordance
with Paragraph 3) times a fraction, the denominator of which is
496,400 and the numerator of which is the number of Shares disposed of
in that sale.
3. Exercise Price.
(a) Subject to adjustment as provided in Paragraph 3(b), the
exercise price ("Exercise Price") for the Option is the sum of: (i)
the Original Cost plus (ii) the aggregate out of pocket expenses
(other than the Original Cost) incurred by RER through such date in
connection with the acquisition and holding of the Shares, including
but not limited to the granting of
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the Option plus (iii) an amount sufficient to reimburse RER for his
cost of funds on his investment in the Shares (notwithstanding
anything else herein, that amount of such reimbursement shall be
calculated as the interest which would accrue upon the amounts listed
in (i) and (ii) from April 28, 1995 through the Closing Date at the
rate of one-year LIBOR (as it fluctuates from time to time during that
period as reported in the Wall Street Journal), plus 50 basis points,
with interest compounded annually.
(b) If and whenever RER sells any of the Shares otherwise than
pursuant to the exercise of the Option, then the Exercise Price
applicable to the remaining Shares owned by RER (the "Remaining
Shares") shall be proportionately adjusted downward as follows: the
Exercise Price shall be calculated in the manner prescribed in
Paragraph 2(a) except that the term "Original Cost" will mean the
product realized by multiplying $3,645,191 times a fraction, the
denominator of which is 496,400 and the numerator of which is the
number of the Remaining Shares.
4. Term; Expiration of Option. The Option will be exercisable, in
accordance with the terms of this Agreement, at any time from and after the
Effective Date through September 12, 2006 (the "Expiration Date"). The period
from the Effective Date through the Expiration Date is called the "Option
Period." The Option shall expire if not exercised by 5 p.m., Fort Worth, Texas
time, on the Expiration Date.
5. Manner of Exercise; Closing Date Defined.
(a) Crescent may exercise the Option at any time, in whole but
not in part, during the Option Period only by complying with the terms
of this Paragraph 5. To exercise the Option, Crescent shall deliver to
RER written notice of such exercise; the Option shall not be deemed
exercised until such notice is actually received by RER (the date on
which such notice is actually received is called the "Exercise Date").
Thereafter at a place, at a time and on a date mutually agreed upon by
Crescent and RER (which shall not be later than ten business days from
the date on which RER receives notice of the exercise of the Option),
(a) RER shall deliver to Crescent certificates representing the Option
Shares duly indorsed (with signature guaranteed) and in otherwise
proper form for transfer (but without express or implied warranties of
any kind whatsoever) and (b) Crescent shall simultaneously deliver to
RER the Exercise Price in immediately available cash funds by wire
transfer to such account or accounts as specified by RER.
(b) The date or respective dates on which RER sells Shares
(whether pursuant to Paragraph 5(a) following exercise of the Option,
or otherwise) are each a "Closing Date."
6. No Other Agreements; Exculpation. It is not the intention of
the parties to this Agreement to create by virtue of this Agreement any trust,
partnership, joint venture, agency or any similar relationship between them; or
any fiduciary relationship between them; or any agreement
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between them to act together with respect to the holding or disposition of any
of the Shares. Nothing in this Agreement will alter or affect RER's sole and
exclusive power to vote and sole and exclusive power to dispose of the Shares.
In addition to but not by way of limiting the foregoing, RER will have no duty
to Crescent to sell or to attempt to sell any of the Shares to third persons or
on the open market in order to realize a gain or to avoid a loss.
7. Adjustments. Any change in the nature or amount of any Shares
by reason of any stock dividend, split-up, reclassification, recapitalization,
merger, consolidation or reorganization shall not affect the Exercise Price,
but thereafter "Shares" as used herein shall mean the Shares as changed in
nature or amount.
8. Further Assurances. Crescent and RER each agrees to execute
and deliver such other instruments and take such other actions as may be
reasonably requested by the other party following exercise of the Option in
order to effectuate the sale and purchase of and transfer of title to the Option
Shares as hereby contemplated in accordance with applicable laws and otherwise
to effectuate the intents and purposes of this Agreement; however, neither party
shall be required in complying with this Paragraph 8 to expend any funds, incur
any monetary obligations, or assume any legal risks which such party considers
significant or burdensome.
9. Notices. All notices and communications which are required or
permitted hereunder shall be delivered personally, by same day or overnight
courier, or by facsimile transmission, as follows:
If to RER:
777 Main Street, Suite 2700
Fort Worth, Texas 76102
Facsimile: 817 820 6650
Attention: Richard E. Rainwater
with a copy to:
777 Main Street, Suite 2700
Fort Worth, Texas 76102
Facsimile: 817 820 6650
Attention: J. Randall Chappel
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If to Crescent:
777 Main Street, Suite 2100
Fort Worth, Texas 76102
Facsimile: 817 878 0429
Attention: Gerald W. Haddock, President
David M. Dean, Senior Vice President, Law
or to such other person, address or number as may be designated by written
notice to the other party as provided herein. Notice will be deemed given only
when actually received by the party to whom it is addressed.
10. Authorized Agent. Crescent shall be entitled to, and shall,
recognize each of J. Randall Chappel and every other individual named as an
Attorney-in-Fact for RER in any power of attorney executed by RER that is of
record in the Deed Records of the County Clerk of Tarrant County, Texas, and
has not been revoked or withdrawn by a filing in such office, as RER's agent
(each an "Agent") authorized, in RER's name, place and stead, to exercise RER's
rights and perform RER's obligations under this Agreement as fully as RER
himself might do; and any notice required or permitted to be given under this
Agreement to RER by Crescent shall be sufficiently given if given by Crescent
to an Agent. The signing and delivery of this Agreement by an Agent on behalf
of RER shall have the same force and effect as if RER himself had signed and
delivered this Agreement.
11. Severability. If any provision of this Agreement
shall be determined by any court of competent jurisdiction to be invalid and
unenforceable, the remainder of this Agreement shall not be affected thereby,
and shall continue in full force and effect.
12. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto with respects to the subject
matter hereof and thereof and supersedes any prior agreements and
understandings between the parties.
13. GOVERNING LAW AND BINDING EFFECT. THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS
CHOICE OF LAW PRINCIPLES AND SHALL BE BINDING UPON AND SHALL INURE TO THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
14. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. Headings. Headings of the paragraphs in this
Agreement are for reference purposes only and shall not be deemed to have any
substantive effect.
16. No Oral Modification. This Agreement cannot be
amended or terminated orally, but only by a writing duly executed by the
parties hereto. Neither party hereto will be
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deemed as a consequence of any act, delay, failure, omission, forbearance or
other indulgence granted to the other party hereto to have waived, or to be
estopped from exercising, any of its rights under this Agreement.
17. Assignability. Neither party may assign its rights or
obligations under this Agreement without the written consent of the other party
hereto, and any attempted assignment without such written consent shall be
null, void and of no effect.
18. Authorization. Each party hereto represents that its
execution and delivery of this Agreement, and its performance of its
obligations hereunder, have been duly authorized and approved.
19. Time of Essence. Time is of the essence in the
performance by each party of its obligations under this Agreement.
6
<PAGE> 14
IN WITNESS WHEREOF, the parties have executed this Agreement the
day and year first above written.
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.,
its sole general partner
By: /s/ DAVID M. DEAN
-------------------------------------------
Title: Senior Vice President, Law
----------------------------------------
/s/ RICHARD E. RAINWATER BY J. RANDALL CHAPPEL
----------------------------------------------
RICHARD E. RAINWATER by J. Randall Chappel,
as Attorney-in-Fact
7
<PAGE> 15
EXHIBIT 7
AGREEMENT OF ASSIGNMENT
This Agreement of Assignment (this "Agreement") is dated as of August 11,
1997, and is being entered by and between Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("Crescent"), and Rainwater, Inc.,
a Texas corporation ("RI"), with reference to the following recitals:
RECITALS
Pursuant to that certain Preferred Stock Purchase Agreement (the "Fresh
Choice Agreement") by and between Crescent and Fresh Choice, Inc., a Delaware
corporation ("Fresh Choice"), dated as of April 26, 1996, Fresh Choice granted
to Crescent an irrevocable option (the "Option") to purchase up to 593,953
shares (collectively, the "Shares") of the Preferred Stock, Series C
Participating Non-Voting Convertible Preferred Stock (the "Series C Preferred
Stock"), of Fresh Choice for a purchase price of $6.00 per share.
Section 9.9 of the Fresh Choice Agreement provides that Crescent may
assign the Option, in whole or in part.
Crescent desires to assign a part of the Option to RI in consideration for
services performed by RI.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT OF OPTION. In consideration for services provided
to Crescent by RI, and based upon the representations and warranties of RI
contained herein, Crescent hereby assigns to RI all of Crescent's right, title
and interest in and under the Option to purchase 80,000 shares (such shares,
together with any additional shares as may become subject of the Option
pursuant to the antidilution provisions of the Fresh Choice Agreement, the "RI
Option Shares") of the Series C Preferred Stock covered thereby. For
convenience, the right to purchase the RI Option Shares being assigned pursuant
to the Agreement is hereinafter referred to as the "RI Option."
SECTION 2. ACCEPTANCE OF ASSIGNMENT; ASSUMPTION OF FRESH CHOICE
AGREEMENT. RI hereby accepts the assignment of the RI Option, subject in all
cases to the terms and provisions of the Fresh Choice Agreement. In connection
therewith, RI represents and warrants to Crescent that RI has received a copy
of the Fresh Choice Agreement, has had the opportunity to review the Fresh
Choice Agreement, and fully understands RI's obligations thereunder. RI hereby
agrees to assume and to be bound by each and every term and condition of the
Fresh Choice Agreement relating to the RI Option, and agrees to be bound by and
to perform fully each of such terms and conditions in accordance with the terms
thereof.
<PAGE> 16
SECTION 3. REPRESENTATIONS AND WARRANTIES OF RI. RI represents and
warrants to Crescent as follows: (i) RI has made an independent evaluation of
Fresh Choice and its business and result of operations, and is not relying upon
Crescent to furnish or provide it with any information of any nature whatsoever
regarding Fresh Choice, and hereby affirms that Crescent is under no obligation
whatsoever to furnish any of such information to RI; (ii) RI is an "accredited
investor," as such term is defined in Rule 501 under the Securities Act of
1933, as amended (the "Act"); (iii) RI has such knowledge and experience in
financial and business matters that RI is capable of evaluating the merits and
risks of the prospective investment in Fresh Choice; (iv) RI has received and
reviewed all information, including, without limitation, information about
Fresh Choice and its financial condition and the results of its operations as
RI deems necessary for the purpose of making a decision to accept the
assignment of the RI Option; (v) RI has had the opportunity to ask questions
and receive answers from representatives of Crescent and to obtain any
additional information it deems necessary for the purpose of making a decision
to accept the assignment of the RI Option and to evaluate the merits and risks
of so doing; and (vi) RI is acquiring the RI Option and, upon exercise thereof,
will acquire shares of the Series C Preferred Stock, for its own account and
not with a view to their distribution within the meaning of Section 2(II) of the
Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF CRESCENT. Crescent
represents and warrants to RI as follows: (i) Crescent is a limited partnership
duly organized and validly existing under the laws of the State of Delaware;
(ii) this Agreement and the transactions contemplated hereby and Crescent's
performance hereunder have been duly authorized by all necessary partnership
action; and (iii) the assignment of the RI Option to RI as contemplated herein
will not breach or violate the terms and provisions of the Fresh Choice
Agreement.
SECTION 5. MISCELLANEOUS. This Agreement contains the entire agreement
between the parties. There are no agreements, restrictions, promises,
representations, warranties, covenants or undertakings, written or oral, other
than those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the matters
contemplated hereby. No amendment, modification or waiver of any provision of
this Agreement, and no consent by any party to any departure therefrom by
another, should be effective unless such amendment, modification, or waiver
shall be in writing and signed by each of the other parties hereto entitled to
the benefit thereof, and the same shall then be effective only for the period
and on the conditions and for the specific instances and purposes specified in
such writing. No notice to or demand on any party in any case shall entitle
such party to any other or further notice or demand in similar or other
circumstances. The captions of the paragraphs of this Agreement are provided
for convenience only and will not effect its construction or interpretation.
<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and on their behalf effective for all purposes as of the day and
year first written above.
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.
By: /s/ DAVID M. DEAN
-----------------------------------
David M. Dean,
Senior Vice President, Law
RAINWATER, INC.
By: /s/ J. RANDALL CHAPPEL
---------------------------------------
J. Randall Chappel, Authorized Officer
<PAGE> 18
EXHIBIT 8
Supplemental Information in response to Item 2
The business addresses of all trust managers and executive officers of CEI and
the sole director and all executive officers of Crescent GP is 777 Main Street,
Suite 2100, Fort Worth, Texas 76102, except as follows:
<TABLE>
<S> <C>
Richard E. Rainwater (trust manager, chairman) 777 Main Street, Suite 2700, Fort Worth, Texas 76102
John C. Goff (trust manager, vice-chairman) 777 Main Street, Suite 2700, Fort Worth, Texas 76102
Morton H. Meyerson (trust manager) 4515 Cole Avenue, Suite 400, Dallas, Texas 75205
Anthony M. Frank (trust manager) 10 Windward Road, Belvedere, California 94920
William F. Quinn (trust manager) 333 Amon Carter Blvd., Fort Worth, Texas 76155
Paul E. Rowsey, III (trust manager) 500 Crescent Court, Suite 300, Dallas, Texas 75201
Melvin Zuckerman (trust manager) 8600 East Rockcliff Road, Tucson, Arizona 85750
John L. Zogg, Jr. 200 Crescent Court, Suite 550, Dallas, Texas 75201
</TABLE>
In addition to the executive officers identified in CEI's Proxy
Statement for its 1997 Annual Meeting of Stockholders, Murphy C. Yates is an
executive officer of Crescent GP. His principal employment is as Director of
Leasing and Operations of Crescent GP.
