<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D/A2**
Under the Securities Exchange Act of 1934
(Amendment No. 2 )*
Fresh Choice, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
0003580321
(CUSIP Number)
Randy Chappel
777 Main Street, Suite 2700
Fort Worth, Texas 76102
(817)877-0477
(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 is 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 496,400 shares of Common
Stock, which constitute approximately 8.8% of the total number of
shares outstanding. All ownership percentages set forth herein assume
that there are 5,668,625 shares outstanding.
*** Information reported in this Amendment previously has been disclosed
in proxy statements of Crescent Real Estate Equities Company: See
Item 6.
Exhibit Index for this Schedule 13D begins on page 6.
Page 1 of 23 Pages
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 0003580321 PAGE 2 OF 23 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard E. Rainwater
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable for purposes of this Amendment -- See Item 3
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Richard E. Rainwater is a citizen of the United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 496,400
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
None
OWNED BY
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 496,400
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
None
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
496,400
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 3
CUSIP NO. 0003580321 13D Page 3 of 23 Pages
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Act of 1933 as amended (the "Act"), the
undersigned hereby amends his Schedule 13D Statement dated April 28, 1995, as
amended by Amendment No. 1 to Schedule 13D Statement dated May 24, 1995 (the
"Schedule 13D"), relating to the Common Stock (the "Common Stock") of Fresh
Choice, Inc. (the "Issuer").
This Amendment No. 2 effects no material changes in Items 1, 2, 3, or
5 (except for 5(d)); material changes in Items 4, 5(d), 6 and 7 effected by
this Amendment No. 2 are specifically noted therein. The text of the Schedule
13D is also altered where appropriate to place past disclosures within
historical context.
Pursuant to Rule 12b-15 and Rule 13d-2(c) of Regulation 13D-G (which
requires that the first electronic amendment to a paper format Schedule 13D
restate the entire text of the Schedule 13D) of the General Rules and
Regulations under the Act, this Amendment amends and restates the Schedule 13D
in its entirety as follows:
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock (the "Common Stock") of
Fresh Choice, Inc., a Delaware corporation (the "Issuer"). The address of the
principal executive offices of the Issuer is Suite 109, 2901 Tasman Drive,
Santa Clara, California 95054-1138.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (c) This statement is being filed by Richard E. Rainwater,
whose business address is 777 Main Street, Suite 2700, Fort Worth, Texas 76102.
His present principal occupation is personal investment for his own account,
primarily through Rainwater, Inc., his wholly-owned corporation at the same
address. The principal business of Rainwater, Inc. is investments.
(d)-(e) Mr. Rainwater during the last five years has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) nor 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.
(f) Mr. Rainwater is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mr. Rainwater used a total of $3,645,191 in personal funds for
purchasing the shares of Common Stock reported in the Schedule 13D. For
purposes of Amendments Nos. 1 and 2 to the Schedule 13D, this Item 3 is
inapplicable.
ITEM 4. PURPOSE OF TRANSACTION.
Mr. Rainwater acquired the shares of Common Stock reported in the
Schedule 13D for investment purposes. Depending on a variety of factors he may
deem significant to his investment
<PAGE> 4
CUSIP NO. 0003580321 13D Page 4 of 23 Pages
decisions, Mr. Rainwater may purchase additional shares of the Common Stock in
the open market or in private transactions or may dispose of all or a portion
of the shares of the Common Stock that he now owns or may hereafter acquire.
During 1995, Mr. Rainwater initiated and held conversations with
management of the Issuer for the purposes of mutual introductions and general
discussions about the Issuer's business.
Discussions during that period between Mr. Rainwater and management of
the Issuer caused Mr. Rainwater to consider the possibility of commercial
transactions between the Issuer and Mr. Rainwater or his affiliated companies.
Those discussions led Mr. Rainwater at that time to submit to the Issuer a
preliminary proposal regarding a financing involving certain of the Issuer's
real properties. Mr. Rainwater engaged in preliminary negotiations with
respect to that proposal with a company affiliated with him. The parties
engaged in reviewing relevant information for the purpose of evaluating whether
or not they wished to pursue further consideration of that proposal, but the
proposal did not ripen beyond a preliminary stage.
[Added by Amendment No. 2] Notwithstanding the preceding, except as set
forth in this paragraph, Mr. Rainwater has no present plans or proposals that
relate to or that would result in any of the actions specified in clauses (a)
through (j) of Item 4 of Schedule 13D. Reference is made to Item 6 for
information concerning a stock option granted by Mr. Rainwater to Crescent Real
Estate Equities Limited Partnership.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Mr. Rainwater is the beneficial owner of 496,400 shares of the
Common Stock. Assuming that 5,668,625 shares of the Common Stock are
outstanding, Mr. Rainwater is the beneficial owner of approximately 8.8% of the
outstanding shares of the Common Stock.
(b) Mr. Rainwater has the sole power to vote or to direct the vote
and to dispose or to direct the disposition of 496,400 shares of the Common
Stock.
(c) During the sixty days immediately preceding the Schedule 13D
Statement dated April 28, 1995, Mr. Rainwater purchased shares of the Common
Stock in open market transactions on the National Market System (NASDAQ) as
follows:
<TABLE>
<CAPTION>
Date Number of Shares Price per Share
- ----- ---------------- ---------------
<S> <C> <C>
02/28/95 5,000 $7. 125
02/28/95 5,000 $7.0625
03/01/95 5,000 $7.25
03/06/95 500 $8.375
03/24/95 16,600 $7.75
03/24/95 3,800 $7.6875
03/27/95 10,000 $7.75
</TABLE>
<PAGE> 5
CUSIP NO. 0003580321 13D Page 5 of 23 Pages
<TABLE>
<S> <C> <C>
03/28/95 4,000 $7.75
03/29/95 10,000 $7.75
03/30/95 5,600 $7.75
04/06/95 15,000 $7.6875
04/07/95 5,000 $7.50
04/12/95 11,500 $7.75
04/17/94 12,500 $6.6875
04/17/95 8,500 $6.375
04/17/95 10,000 $6.50
04/17/95 10,000 $6.75
04/17/95 5,000 $6.25
04/18/95 10,000 $6.625
04/19/95 50,000 $6.625
04/19/95 57,000 $6.75
04/19/95 25,000 $7.25
04/19/95 10,000 $6.75
04/24/95 10,000 $7.625
04/28/95 72,500 $7.625
</TABLE>
During the past 60 days preceding this Amendment No. 2, Mr. Rainwater
has not effected any transactions in the Common Stock except as described in
Item 6.
[Added by Amendment No. 2] (d) No person other than Mr. Rainwater has
the right to receive or to direct the receipt of dividends from the shares of
the Common Stock reported in this Schedule 13D. As more fully described in
Item 6, Crescent Real Estate Equities Limited Partnership has the right to
receive a portion of proceeds from the sale of shares of the Common Stock
reported in this Schedule 13D.
(e) It is inapplicable for the purposes herein to state the date on
which Mr. Rainwater ceased to be the beneficial owner of more than five percent
(5%) of the outstanding shares of the Common Stock.
<PAGE> 6
CUSIP NO. 0003580321 13D Page 6 of 23 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Except as described herein above or in the Exhibits filed herewith,
Mr. Rainwater has no contracts, arrangements, understandings or relationships
with any other person with respect to the shares of the Common Stock reported
in the Schedule 13D.
[Remainder of Item 6 added by Amendment No. 2] 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.
Crescent Real Estate Equities Limited Partnership ("CREELP") -- the
operating partnership for and subsidiary of Crescent Real Estate Equities
Company, a publicly-traded real estate investment trust ("Crescent") -- on
September 13, 1996 purchased from Issuer 1,187,906 shares of Series B
Non-Voting Participating Convertible Preferred Stock (the "Series B Stock") and
a three-year option (the "Series C Stock Option") to purchase from Issuer 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. The Series C
Stock Option became exercisable immediately. The Series C Stock receivable
upon exercise of the Series C Stock Option is currently convertible into Common
Stock on a one-for-one basis. Mr. Rainwater is the Chairman of the Board and a
significant stockholder of Crescent.
As previously disclosed in Crescent's proxy statements for its 1996
and 1997 Annual Meetings of Shareholders, CREELP, in connection with its
agreement to purchase the Series B Stock and the Series C Stock Option from
Issuer, anticipated acquisition of the Option (as defined below) from Mr.
Rainwater and the granting to Rainwater, Inc. of 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, Mr. Rainwater entered into a Call Option Agreement
(the "Option Agreement") with CREELP whereby Mr. Rainwater granted to CREELP
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
reported in this Schedule 13D (the "Shares") at Mr. Rainwater's investment cost
in the Shares (including the funds reported in Item 3, 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 CREELP notice of his intention to sell so that
CREELP may exercise the Option; if CREELP fails to exercise the Option within
two business days, Mr. Rainwater may sell those Shares but must remit to CREELP
the cash proceeds from the sale, net of his investment cost in the Shares sold.
Also on August 11, CREELP entered into an Agreement of Assignment with
Mr. Rainwater's wholly owned corporation, Rainwater, Inc. ("RI"), whereby
CREELP partially assigned (to the extent of 80,000 shares) to RI its Series C
Stock Option. Effective immediately thereafter, RI entered into Agreements of
Assignment with two of its advisers, J. Randall Chappel and Kenneth A. Hersh,
whereby RI assigned to each of them one-half ( i. e., 40,000 shares) of the
Series C Stock Option interest which RI had received from CREELP; as a result,
RI retains no interest in the Series C Stock Option.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
[Added by Amendment No. 2] Exhibit A --- Power of Attorney authorizing
J. Randall Chappel and Kenneth A. Hersh to act on behalf of Richard E.
Rainwater (filed with Form 4 Statement of
<PAGE> 7
CUSIP NO. 0003580321 13D Page 7 of 23 Pages
Richard E. Rainwater for December 1995 relating to securities of Crescent Real
Estate Equities, Inc., dated January 9, 1996, and incorporated herein by
reference).
Exhibit B -- Call Option Agreement dated August 11, 1997, between
Richard E. Rainwater and Crescent Real Estate Equities Limited Partnership, at
page 8.
Exhibit C -- Agreement of Assignment dated August 11, 1997, between
Crescent Real Estate Equities Limited Partnership and Rainwater, Inc., at page
15.
Exhibit D -- Agreement of Assignment dated as of August 11, 1997,
between Rainwater, Inc. and J. Randall Chappel, at page 18.
Exhibit E -- Agreement of Assignment dated as of August 11, 1997,
between Rainwater, Inc. and Kenneth A. Hersh, at page 21.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 5, 1997
/s/ RICHARD E. RAINWATER
-------------------------------------------
Richard E. Rainwater by J. Randall Chappel,
As Attorney-in-Fact
<PAGE> 8
EXHIBIT B
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:
1
<PAGE> 9
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
2
<PAGE> 10
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
3
<PAGE> 11
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
4
<PAGE> 12
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
5
<PAGE> 13
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 C
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 D
AGREEMENT OF ASSIGNMENT
This Agreement of Assignment (this "Agreement") is dated as of August
11, 1997, and is being entered into by and between Rainwater, Inc., a Texas
corporation ("Rainwater"), and J. Randall Chappel ("Chappel").
WHEREAS, pursuant to that certain Preferred Stock Purchase Agreement
(the "Fresh Choice Agreement") by and between Crescent Real Estate Equities
Limited Partnership, a Delaware limited partnership ("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 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 (the "Option");
and
WHEREAS, pursuant to that certain Agreement of Assignment dated as of
August 11, 1996 (the "Rainwater Assignment"), Crescent granted Rainwater a
partial assignment of the Option, being more specifically the right to purchase
80,000 shares of the Series C Preferred Stock covered by the Option, and
Rainwater assumed and agreed to be bound by and to perform fully each and every
term and condition of the Fresh Choice Agreement relating to the Option; and
WHEREAS, Section 9.9 of the Fresh Choice Agreement provides that the
Option is assignable in whole or in part; and
WHEREAS, Rainwater desires to assign a portion of its portion of the
Option to Chappel in consideration for services performed by Chappel for
Rainwater.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants and agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. ASSIGNMENT OF OPTION. In consideration for services
provided to Rainwater by Chappel, and based upon the representations and
warranties of Chappel contained herein, Rainwater hereby assigns to Chappel all
of Rainwater's right, title and interest in and under the Option to purchase
40,000 shares (such shares, together with any additional shares as may become
subject to the Option pursuant to the antidilution provisions of the Fresh
Choice Agreement, the "Chappel Option Shares") of the Series C Preferred Stock
covered thereby. For convenience, the right to purchase the Chappel Option
Shares being assigned pursuant to this Agreement is hereinafter referred to as
the "Chappel Option." The foregoing assignment, while absolute, is qualified by
reference to the Rainwater Assignment, it being acknowledged and agreed by the
parties hereto that Rainwater is not hereby granting any greater right, title
or interest in and under the Option than the right, title and interest granted
Rainwater pursuant to the Rainwater Assignment to purchase 40,000 shares
(subject to antidilution protection as referenced above) of the Series C
Preferred Stock covered by the Option.
<PAGE> 19
SECTION 2. ACCEPTANCE OF ASSIGNMENT; ASSUMPTION OF FRESH CHOICE
AGREEMENT. Chappel hereby accepts the assignment of the Chappel Option, subject
in all cases to the terms and provisions of the Fresh Choice Agreement and the
Rainwater Assignment. In connection therewith, Chappel represents and warrants
that Chappel has received a copy of the Fresh Choice Agreement and the Rainwater
Assignment, has had the opportunity to review the Fresh Choice Agreement and the
Rainwater Assignment, and fully understands Chappel's obligations thereunder.
Chappel hereby agrees to assume and to be bound by each and every term and
condition of the Fresh Choice Agreement and the Rainwater Assignment relating
to the Chappel Option, and agrees to be bound by and to perform fully each of
such terms and conditions in accordance with the terms thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CHAPPEL. Chappel
represents and warrants to Rainwater as follows: (i) Chappel has made an
independent evaluation of Fresh Choice and its business and result of
operations, and is not relying upon Rainwater to furnish or provide it with any
information of any nature whatsoever regarding Fresh Choice; (ii) Chappel is an
"accredited investor," as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Act"); (iii) Chappel has such knowledge and
experience in financial and business matters that Chappel is capable of
evaluating the merits and risks of the prospective investment in Fresh Choice;
and (iv) Chappel is acquiring the Chappel Option and, upon exercise thereof,
will acquire the shares of Fresh Choice for his own account and not with a view
to their distribution within the meaning of Section 2(11) of the Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF RAINWATER. Rainwater
represents and warrants to Chappel as follows: (i) Rainwater is a corporation
duly organized and validly existing under the laws of the state of Texas; (ii)
this Agreement and the transactions contemplated hereby and Rainwater's
performance hereunder have been duly authorized by all necessary corporate
action; and (iii) the assignment of the Chappel Option to Chappel as
contemplated herein will not breach or violate the terms and provisions of the
Rainwater Assignment.
SECTION 5. MISCELLANEOUS. This Agreement contains the entire
agreement between the parties concerning the subject hereof. There are no
agreements, restrictions, promises, representations, warranties, covenants or
undertakings, written or oral, other than those expressly set forth herein.
This Agreement supercedes all prior agreements and understanding 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> 20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of date first written above.
RAINWATER, INC.
a Texas corporation /s/ J. RANDALL CHAPPEL
------------------------------
J. RANDALL CHAPPEL
By: /s/ KENNETH A. HERSH
----------------------------
Name: Kenneth A. Hersh
--------------------------
Title: Vice President
-------------------------
<PAGE> 21
EXHIBIT E
AGREEMENT OF ASSIGNMENT
This Agreement of Assignment (this "Agreement") is dated as of August
11, 1997, and is being entered into by and between Rainwater, Inc., a Texas
corporation ("Rainwater"), and Kenneth A. Hersh ("Hersh").
WHEREAS, pursuant to that certain Preferred Stock Purchase Agreement
(the "Fresh Choice Agreement") by and between Crescent Real Estate Equities
Limited Partnership, a Delaware limited partnership ("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 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 (the "Option");
and
WHEREAS, pursuant to that certain Agreement of Assignment dated as of
August 11, 1996 (the "Rainwater Assignment"), Crescent granted Rainwater a
partial assignment of the Option, being more specifically the right to purchase
80,000 shares of the Series C Preferred Stock covered by the Option, and
Rainwater assumed and agreed to be bound by and to perform fully each and every
term and condition of the Fresh Choice Agreement relating to the Option; and
WHEREAS, Section 9.9 of the Fresh Choice Agreement provides that the
Option is assignable in whole or in part; and
WHEREAS, Rainwater desires to assign a portion of its portion of the
Option to Hersh in consideration for services performed by Hersh for Rainwater.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants and agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. ASSIGNMENT OF OPTION. In consideration for services
provided to Rainwater by Hersh, and based upon the representations and
warranties of Hersh contained herein, Rainwater hereby assigns to Hersh all of
Rainwater's right, title and interest in and under the Option to purchase
40,000 shares (such shares, together with any additional shares as may become
subject to the Option pursuant to the antidilution provisions of the Fresh
Choice Agreement, the "Hersh Option Shares") of the Series C Preferred Stock
covered thereby. For convenience, the right to purchase the Hersh Option Shares
being assigned pursuant to this Agreement is hereinafter referred to as the
"Hersh Option." The foregoing assignment, while absolute, is qualified by
reference to the Rainwater Assignment, it being acknowledged and agreed by the
parties hereto that Rainwater is not hereby granting any greater right, title
or interest in and under the Option than the right, title and interest granted
Rainwater pursuant to the Rainwater Assignment to purchase 40,000 shares
(subject to antidilution protection as referenced above) of the Series C
Preferred Stock covered by the Option.
<PAGE> 22
SECTION 2. ACCEPTANCE OF ASSIGNMENT; ASSUMPTION OF FRESH CHOICE
AGREEMENT. Hersh hereby accepts the assignment of the Hersh Option, subject in
all cases to the terms and provisions of the Fresh Choice Agreement and the
Rainwater Assignment. In connection therewith, Hersh represents and warrants
that Hersh has received a copy of the Fresh Choice Agreement and the Rainwater
Assignment, has had the opportunity to review the Fresh Choice Agreement and
the Rainwater Assignment, and fully understands Hersh's obligations thereunder.
Hersh hereby agrees to assume and to be bound by each and every term and
condition of the Fresh Choice Agreement and the Rainwater Assignment relating
to the Hersh Option, and agrees to be bound by and to perform fully each of
such terms and conditions in accordance with the terms thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF HERSH. Hersh
represents and warrants to Rainwater as follows: (i) Hersh has made an
independent evaluation of Fresh Choice and its business and result of
operations, and is not relying upon Rainwater to furnish or provide it with any
information of any nature whatsoever regarding Fresh Choice; (ii) Hersh is an
"accredited investor," as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Act"); (iii) Hersh has such knowledge and
experience in financial and business matters that Hersh is capable of
evaluating the merits and risks of the prospective investment in Fresh Choice;
and (iv) Hersh is acquiring the Hersh Option and, upon exercise thereof, will
acquire the shares of Fresh Choice for his own account and not with a view to
their distribution within the meaning of Section 2(11) of the Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF RAINWATER.
Rainwater represents and warrants to Hersh as follows: (i) Rainwater is a
corporation duly organized and validly existing under the laws of the state of
Texas; (ii) this Agreement and the transactions contemplated hereby and
Rainwater's performance hereunder have been duly authorized by all necessary
corporate action; and (iii) the assignment of the Hersh Option to Hersh as
contemplated herein will not breach or violate the terms and provisions of the
Rainwater Assignment.
SECTION 5. MISCELLANEOUS. This Agreement contains the entire
agreement between the parties concerning the subject hereof. There are no
agreements, restrictions, promises, representations, warranties, covenants or
undertakings, written or oral, other than those expressly set forth herein.
This Agreement supercedes all prior agreements and understanding 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> 23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of date first written above.
RAINWATER, INC.
a Texas corporation /s/ KENNETH A. HERSH
----------------------------
KENNETH A. HERSH
By: /s/ J. RANDALL CHAPPEL
----------------------------
Name: J. Randall Chappel
--------------------------
Title: Authorized Agent
-------------------------
