Exhibit 10.2
RESTATED AND AMENDED AGREEMENT REGARDING CORPORATE
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GOVERNANCE
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THIS RESTATED AND AMENDED AGREEMENT REGARDING CORPORATE GOVERNANCE
("Agreement"), is dated as of May 4, 1994, by and among CHARLES W. DUDDLES,
an individual (hereinafter, "Designated Officer"), FOODMAKER, INC., a
Delaware corporation ("Foodmaker"), CRC-I CORP., a Massachusetts corporation
("CRC-I Corp."), CRC-II CORP., a Massachusetts corporation ("CRC-II Corp."),
FM 1993A CORP., a Delaware corporation ("FM 1993A"), CHARLES F. MacGILL, an
individual (hereinafter, "Independent Director"), R. GORDON MATTHEWS, an
individual ("Matthews"), ROBERT H. KEY, an individual ("Key"), and Robert L.
Nessen, an individual ("Nessen"), who agree as follows:
RECITALS
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WHEREAS, Designated Officer, Foodmaker, CRC-I Corp., CRC-II Corp., FM
1993A, Christopher Wilson, an individual ("Wilson"), Matthews-Philips Service
Company, a Pennsylvania general partnership ("Matthews-Philips"), Key, and
Robert L. Nessen, an individual ("Nessen") (collectively referred to herein
as the "Original Parties"), were parties to the Agreement Regarding Corporate
Governance (the "Original Agreement"), dated as of December 15, 1993 pursuant
to which the Original Parties intended to set forth their respective rights
and responsibilities with respect to the corporate governance of CRC-I Corp.,
CRC-II Corp. and FM 1993A (the "Corporations");
WHEREAS, Wilson has resigned from his position as a director of
each of the Corporations, and is, therefore, not a party hereto;
WHEREAS, Independent Director is now a director of each of the
Corporations;
WHEREAS, Nessen no longer holds any stock of CRC-I Corp.
WHEREAS, Matthews-Philips no longer holds any stock of CRC-I Corp.,
and is, therefore, not a party hereto;
WHEREAS, Matthews is the sole shareholder of CRC-I Corp.;
WHEREAS, CRC-I Corp. is the sole corporate general partner of CRC-I
Limited Partnership, a Massachusetts limited partnership ("CRC-I Limited
Partnership");
WHEREAS, Nessen is the sole shareholder of CRC-II Corp.;
WHEREAS, CRC-II Corp. is the sole corporate general partner of
CRC-II Limited Partnership, a Massachusetts limited partnership ("CRC-II
Limited Partnership;" together with CRC-I Limited Partnership, the "Limited
Partnerships");
WHEREAS, Key is the sole shareholder of FM 1993A;
WHEREAS, Designated Officer is an officer and director of Foodmaker
and of each of the Corporations;
WHEREAS, Foodmaker and the Limited Partnerships are parties to
those certain sale-leaseback transactions (hereinafter, "Sale-Leaseback
Transactions") described in (i) that certain Master Lease between CRC-I
Limited Partnership, as lessor, and Foodmaker, as lessee, (ii) that certain
Master Lease between CRC-II Limited Partnership, as lessor, and Foodmaker, as
lessee, (iii) that certain Registration Rights Agreement (as hereinafter
defined), and (iv) certain other documents executed in connection therewith
(collectively, "Transaction Documents");
WHEREAS, FM 1993A has issued certain debt securities ("Debt
Securities") and utilized the proceeds thereof to purchase certain promissory
notes from the Limited Partnerships in connection with the Sale-Leaseback
Transactions;
WHEREAS, in connection with the Sale-Leaseback Transactions,
Foodmaker, FM 1993A, and the Limited Partnerships (collectively, the
"Co-Registrants") have executed that certain Registration Rights Agreement
dated as of December 15, 1993 ("Registration Rights Agreement"), which
requires the Co-Registrants to participate in the filing of a registration
statement with the Securities and Exchange Commission incident to FM 1993A's
sale of the Debt Securities;
WHEREAS, by this Agreement, the parties intend to set forth their
respective rights and responsibilities with respect to the corporate
governance of each of the Corporations;
WHEREAS, Foodmaker acknowledges and agrees that it will receive a
material benefit from the participation of the Limited Partnerships and FM
1993A in such transaction.
NOW, THEREFORE, in consideration of the agreements contained or
recited in this Agreement and other good and valuable consideration, receipt
of which is hereby
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acknowledged, the parties hereby agree to amend and restate the Original
Agreement as follows:
1. Basic Term. This Agreement shall remain in effect for a
period beginning on the date hereof and continuing until November 1, 2003.
2. Obligations Of Designated Officer. For as long as
Designated Officer is an officer, director or employee of Foodmaker, upon the
nomination and election of the Designated Officer by the shareholders of each
of the Corporations, the Designated Officer shall serve as a director of each
of the Corporations, and shall vote to appoint himself to serve as the
President, Treasurer and Clerk of CRC-I Corp. and CRC-II Corp., and
President, Treasurer and Secretary of FM 1993A (and any other office required
under Massachusetts or Delaware corporate law, as applicable). The
Designated Officer shall accept said nomination and election from time to
time as required under the laws of the state of Massachusetts or Delaware, as
applicable, and shall serve as a director and as the officers of each of the
Corporations until such time as the Debt Securities have been repaid in full
and the registration statement described in the Registration Rights Agreement
is no longer effective.
3. Obligations Of Foodmaker. If the Designated Officer shall
cease to be an officer, director or employee of Foodmaker for any reason or
shall resign as the director or officer of any of the Corporations, Foodmaker
shall designate a successor (hereinafter, "Successor Designated Officer")
who, for as long as the Successor Designated Officer is an officer of
Foodmaker, upon the nomination and election of the Successor Designated
Officer by the shareholders of the Corporations, shall serve as the director
of each of the Corporations and shall appoint himself or herself to serve as
the President, Treasurer and Clerk of CRC-I Corp. and CRC-II Corp., and
President, Treasurer and Secretary of FM 1993A (and the holder of any other
office required under Massachusetts or Delaware corporate law, as
applicable). The Successor Designated Officer shall accept such nomination
and election from time to time as required under the laws of the states of
Massachusetts or Delaware, as applicable, and shall serve as a director and
the officers of each of the Corporations until such time as the Debt
Securities have been repaid in full and the registration statement described
in the Registration Rights Agreement is no longer effective. Upon
designating a Successor Designated Officer, Foodmaker shall cause such
Successor Designated Officer to execute and deliver to the other parties
hereto an agreement in form and substance satisfactory to them pursuant to
which he or she assumes the obligations of the Designated Officer hereunder
from and after the date of his or her appointment as such.
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4. Obligations Of Shareholders. Until such time as the Debt
Securities have been repaid in full and the registration statement described
in the Registration Rights Agreement is no longer effective, the shareholders
of each of the Corporations: (i) shall not sell or transfer (including,
without limitation, by pledge or hypothecation) their stock in any of the
Corporations unless the individual, corporation, partnership, association,
trust or other entity to whom such shares are to be sold or transferred
(including, without limitation, by pledge or hypothecation) shall agree, in
writing, to be bound by the terms of this Agreement, and (ii) shall elect the
Independent Director and the Designated Officer as directors of each of the
Corporations. If either (i) the Designated Officer shall cease to be
employed by Foodmaker for any reason, or (ii) the Designated Officer shall
resign as a director or as the officers of any of the Corporations, the
shareholders of each of the Corporations shall elect the Successor Designated
Officer as the director of each of the Corporations. If the Independent
Director shall resign as a director of any of the Corporations, the
shareholders of each of the Corporations shall elect a Successor Independent
Director as the director of each of the Corporations (hereinafter, "Successor
Independent Director"). Such Successor Independent Director shall be an
individual who (A) is not and has not been employed by Foodmaker or any of
its subsidiaries1 or affiliates,2 or any partner of either of the Limited
Partnerships, or any person3 or entity controlling4 either of the Limited
Partnerships or any partner of either of the Limited Partnerships, or any of
their
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1 A "subsidiary" of a person shall mean any corporation the majority of the
vesting stock of which is owned, directly or indirectly through one or more
other subsidiaries, by such person.
2 An "affiliate" of a person, or a person "affiliated with" a specified
person, shall mean a person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common
control with, the specified person.
3 The term "person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person pursuant to
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
4 The term "control" (including the terms "controlling," "controlled by" and
"under common control with") shall mean
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respective subsidiaries or affiliates (collectively, the "Subject Persons"),
as a director, officer or employee within the three years immediately prior
to such individual's appointment as an Independent Director; (B) is not (and
is not affiliated with a company or a firm that is) and has not been a
significant advisor or consultant5 to any of the Subject Persons within the
three years immediately prior to such individual's appointment as an
Independent Director; (C) does not have and has not had personal services
contract(s)6 with any of the Subject Persons within the three years
immediately prior to such individual's appointment as an Independent
Director; (D) is not affiliated with a tax-exempt entity that receives
significant contributions7 from any of the Subject
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the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities by contract, or otherwise; provided,
however, that a person shall not be deemed to control another person
solely because he or she is a director of such other person.
5 A person shall be deemed to be, or to be affiliated with, a company or firm
that is a "significant advisor or consultant" to a Subject Person: if he,
she or it, as the case may be, received or would receive fees or similar
compensation from such Subject Person in excess of the lesser of (A) 3% of
the consolidated gross revenues which Foodmaker and its subsidiaries
received during Foodmaker's last fiscal year, (B) 5% of the gross revenues
of the person during the last calendar year, if such person is a
self-employed individual, and (C) 3% of the consolidated gross revenues by
such company or firm for the sale of its products and services during
its last fiscal year, if the person is a company or firm; provided,
however, that director's fees and expense reimbursements shall not be
included in the gross revenues of an individual for purposes of this
determination.
6 A person shall be deemed to have "personal services contract(s) with a
Subject Person" if the fees and other compensation received by the person
pursuant to personal services contract(s) with such Subject Person exceeded
or would exceed 5% of his or her gross revenues during the last calendar
year.
7 A tax-exempt entity shall be deemed to receive "significant contributions
from a Subject Person": if such tax-exempt
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Persons within the three years immediately prior to such individual's
appointment as an Independent Director; (E) is not the beneficial owner (nor
an officer or director of any such beneficial owner) at the time of such
individual's appointment as an Independent Director, or at any time
thereafter while serving as an Independent Director, of equity interests in
any of the Subject Persons the value of which constitute more than 5% of such
individual's net worth; and (F) is not a spouse, parent, sibling or child of
any persons described by (A) through (F). The Successor Independent Director
shall accept such nomination and election from time to time as required under
the laws of the states of Massachusetts or Delaware, as applicable, and serve
as director of each of the Corporations until such time as the Debt
Securities have been repaid in full. Upon designating a Successor
Independent Director, the shareholders of each of the Corporations shall
cause such Successor Independent Director to execute and deliver to the other
parties hereto an agreement in form and substance satisfactory to them
pursuant to which he or she assumes the obligations of the Independent
Director hereunder from and after the date of his or her election as such.
5. Obligations Of Independent Director. Upon the nomination
and election of the Independent Director by the shareholders of the
Corporations, the Independent Director shall accept such nomination, shall
serve as a director of the Corporations, and shall vote to appoint the
Designated Officer to serve as the President, Treasurer and Clerk of CRC-I
Corp. and CRC-II Corp., and President, Treasurer and Secretary of FM 1993A
(and any other office required under Massachusetts or Delaware corporate law,
as applicable).
6. Certain Corporate Governance Matters. Foodmaker and the
Designated Officer agree that the Designated Officer (or Successor Designated
Officer), in his or her capacities as a director or officer of any of the
Corporations) will not take, and Foodmaker will not permit the Designated
Officer (or Successor Designated Officer) to take,
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entity received during its last fiscal year, or expects to receive during
its current fiscal year, contribution from such Subject Person in excess of
the lesser of (A) 3% of the consolidated gross revenues of Foodmaker and
its subsidiaries during such fiscal year, and (B) 5% of the contributions
received by the tax-exempt entity during such fiscal year.
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any action specified below without the prior written consent of the holders
of 51% or more of the limited partnership interests in the Limited
Partnership by which such action is proposed to be taken, or, in the case of
an action by FM 1993A, without the prior written consent of the holders of
51% or more of the limited partnership interests in each Limited Partnership:
a. Any action to waive compliance by Foodmaker with, to amend or
to consent to a deviation by Foodmaker from the terms of the Transaction
Documents.
b. Any action to accept or reject any offer made by Foodmaker to
either Limited Partnership pursuant to the terms of either Master Lease
referenced in the preamble to this Agreement.
c. Any action which would constitute or result in a violation by
either Limited Partnership or by FM 1993A of any of the provisions of the
Transaction Documents.
In addition, the Designated Officer (or Successor Designated Officer), in his
or her capacities as, and subject to his or her fiduciary duties as, a
director or officer of any of the Corporations, shall take any action upon
the written request of the holders of 51% or more of the limited partnership
interests in the Limited Partnership by which such action is proposed to be
taken (provided that such action is not in violation of such Corporation's
organizational documents or the limited partnership agreement of such Limited
Partnership), or, in the case of FM 1993A, upon the written request of the
holders of 51% or more of the limited partnership interests in each Limited
Partnership.
7. Certain Affirmative Corporate Governance Obligations.
Foodmaker agrees that it will take, and will cause the Designated Officer (or
Successor Designated Officer) to take, at Foodmaker's expense, all necessary
action to ensure that the Limited Partnerships and FM 1993A are at all times
in full compliance with the provisions of each of the Transaction Documents
to which they are a party. In addition to the foregoing, Foodmaker agrees
that it will take, and will cause the Designated Officer (or Successor
Designated Officer) to take, all necessary action requested by any limited
partner of the Limited Partnerships to effectuate the transfer to any third
party of such limited partner's partnership interest in the Limited
Partnership in which such limited partner is a partner (provided that the
prior written consent of the general partner of such Limited Partnership has
been obtained) and all necessary action requested by the holders of 51% or
more of the limited partnership interests in a Limited Partnership to sell,
assign or otherwise transfer all or any
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portion of the assets of such Limited Partnership (provided that such
transfer is carried out in accordance with Section 1.06 of the applicable
mortgage or deed of trust entered into by such Limited Partnership as a part
of the Transaction Documents covering the assets proposed to be so
transferred).
8. Further Assurances. Each party shall perform any further
acts and execute and deliver any documents which reasonably may be necessary
to carry out the intent of this Agreement.
9. Attorneys' Fees. If any action or proceeding is commenced
or legal counsel consulted to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to recover from the other
party attorneys' fees and costs incurred in connection with such legal action
or consultation. The term "prevailing party" shall mean the party in any
action or consultation who obtains substantially the relief or result sought,
whether by compromise, settlement or judgment.
10. Governing Law. This Agreement in all respects shall be
interpreted, enforced and governed by and under the laws of the Commonwealth
of Massachusetts.
11. Integration. This Agreement memorializes and constitutes
the final, complete and exclusive agreement and understanding between the
parties, and supersedes and replaces all prior negotiations, proposed
agreements and agreements, whether written or oral. Each party to this
Agreement acknowledges that no other party or agent or attorney for any other
party has made any promise, representation or warranty whatsoever, express or
implied, which is not expressly contained in this Agreement and each party
further acknowledges that it has not executed this Agreement in reliance upon
any collateral promise, representation or warranty, or in reliance on any
belief as to any fact not expressly recited in the Recitals above.
12. Independent Advice. Each party acknowledges that it has
received independent legal advice to the extent it deemed necessary with
respect to the advisability of entering into this Agreement.
13. Headings. Paragraph headings have been inserted into this
Agreement as a matter of convenience only and are not a part of this
Agreement and shall not be used in the interpretation of this Agreement.
14. Severance. If a provision of this Agreement is held to be
illegal or invalid by a court of competent
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jurisdiction, said provision shall be deemed to be severed and deleted and
neither such provision, nor its severance and deletion, shall effect the
validity of the remaining provisions.
15. Successors And Assigns. The provisions, covenants,
conditions and agreements herein contained shall apply to, bind and inure to
the benefit of the parties and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
16. Counterparts. This Agreement may be executed in one or
more counterparts all of which together shall constitute one original
document.
17. Interpretation. This Agreement has been negotiated at
arm's length between persons sophisticated and knowledgeable with the matters
dealt with in this Agreement. In addition, each party has been given the
opportunity to consult with and has consulted with experienced and
knowledgeable legal counsel. Accordingly, any rule of law or legal decision
that would require interpretation of any ambiguities in this Agreement
against the party that has drafted it is not applicable and is waived. The
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the purposes of this Agreement.
18. Venue. Venue for any action, whether arbitration,
judicial or otherwise, shall be in San Diego County, California.
19. No Oral Modifications. This Agreement may be amended
or modified in writing only signed by the parties hereto.
20. Notices. All communications herein provided for or made
pursuant hereto shall be in writing and shall be sent by (i) legible fax with
original to follow in due course (failure to send such original shall not
affect the validity of such fax notice), and the giving of such communication
shall be complete when such fax is received, and (ii) either (A) registered
or certified mail, return receipt requested, in which event the giving of
such communication shall be deemed complete on the fifth business day after
the same is deposited in the United States Post Office with charges prepaid,
or (B) reputable overnight delivery service, in which event the giving of
such communication shall be deemed complete upon the immediately succeeding
business day after the same is deposited with such delivery service:
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If to Designated Officer: Charles W. Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to Foodmaker: Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123-1516
If to CRC-I Corp.: CRC-I Corp.
c/o R. Gordon Matthews
650 Washington Road
Pittsburgh, Pennsylvania 15238
and to: c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to CRC-II Corp.: CRC-II Corp.
c/o Robert L. Nessen
Corporate Realty Capital
One Financial Center
13th Floor
Boston, Massachusetts 02111
and to: c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
If to FM 1993A Corp: FM 1993A Corp.
c/o Robert Key
3350 North 60th Street
Phoenix, Arizona 85018
and to: FM 1993A Corp.
c/o Charles Duddles
9330 Balboa Avenue
San Diego, California 92123-1516
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If to Independent Director: By Overnight Mail
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Charles F. MacGill
Lane Gate Road
RR #3
Cold Spring, New York 10516
By Registered/Certified Mail
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Charles F. MacGill
P.O. Box 131
Moffat Road
Cold Spring, New York 10516
By Facsimile
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(914) 265-3635
If to Matthews: R. Gordon Matthews
650 Washington Road
Pittsburgh, Pennsylvania 15238
If to Key: Robert H. Key
3350 North 60th Street
Phoenix, Arizona 85018
EFFECTIVE DATE
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This Agreement shall be effective as of the date first specified
above.
Charles F. MacGill
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Charles F. MacGill, an individual
R. Gordon Matthews
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R. Gordon Matthews, an individual
Robert H. Key
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Robert H. Key, an individual
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Charles W. Duddles
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Charles W. Duddles, an individual
Robert L. Nessen
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Robert L. Nessen, an individual
FOODMAKER, INC.,
a Delaware corporation
By: William E. Rulon
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William E. Rulon
Senior Vice President and Secretary
By: Leo Momsen
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Leo Momsen
Assistant Secretary
CRC-I CORP.,
a Massachusetts corporation
By: Charles W. Duddles
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Charles W. Duddles
President
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CRC-II CORP.,
a Massachusetts corporation
By: Charles W. Duddles
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Charles W. Duddles
President
FM 1993A Corp.,
a Delaware corporation
By: Charles W. Duddles
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Charles W. Duddles
President
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