with a copy to:
|
|
Brian P. Friedman
|
Melvin Epstein, Esq.
|
Jefferies Capital Partners LLC (f/k/a Jefferies Capital Partners IV LLC)
|
Stroock & Stroock & Lavan LLP
|
520 Madison Avenue, 10th Floor
|
180 Maiden Lane
|
New York, New York 10022
|
New York, New York 10038
|
(212) 284-1700
|
(212) 806-5864
|
(Name, Address and Telephone Number of Person
|
Authorized to Receive Notices and Communications)
|
June 4, 2012
|
(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 that is the subject of this Schedule 13D/A, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|.
|
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.
|
(Continued on following pages)
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 2 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
Jefferies Capital Partners IV LP
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
WC
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
Delaware
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
3,546,883
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
3,546,883
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
3,546,883
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
15.3%(1)
|
14.
|
Type of Reporting Person*
|
|
PN
|
||
(1) Based on 23,161,822 shares of Common Stock, par value $0.01 per share ("Common Stock"), of Carrols Restaurant Group, Inc., a Delaware corporation (the "Company"), outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 3 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
Jefferies Employee Partners IV LLC
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
WC
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
Delaware
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
408,518
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
408,518
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
408,518
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
1.8%(1)
|
14.
|
Type of Reporting Person*
|
|
OO
|
||
(1) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 4 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
JCP Partners IV LLC
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
WC
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
Delaware
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
129,708
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
129,708
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
129,708
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
0.6%(1)
|
14.
|
Type of Reporting Person*
|
|
OO
|
||
(1) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 5 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
JCP IV LLC
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
AF
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
Delaware
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
4,085,109(1)
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
4,085,109(1)
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
4,085,109(1)
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
17.6%(2)
|
14.
|
Type of Reporting Person*
|
|
OO
|
||
(1) JCP IV LLC, a Delaware limited liability company (“General Partner”), is the general partner of Jefferies Capital Partners IV LP, a Delaware limited partnership ("Jefferies Capital Partners IV") and is the managing member of each of Jefferies Employee Partners IV LLC, a Delaware limited liability company ("Jefferies Employee Partners"), and JCP Partners IV LLC, a Delaware limited liability company ("JCP Partners," and together with Jefferies Capital Partners IV and Jefferies Employee Partners, "Jefferies Capital Partners").
|
||
(2) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 6 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
Jefferies Capital Partners LLC
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
AF
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
Delaware
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
4,085,109(1)
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
4,085,109(1)
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
4,085,109(1)
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
17.6%(2)
|
14.
|
Type of Reporting Person*
|
|
OO
|
||
(1) Jefferies Capital Partners LLC (f/k/a Jefferies Capital Partners IV LLC), a Delaware limited liability company (“Manager”), is the manager of Jefferies Capital Partners and the managing member of General Partner.
|
||
(2) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 7 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
Brian P. Friedman
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
AF
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
United States
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
4,085,109(1)
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
4,085,109(1)
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
4,085,109(1)
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
[ ]
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
17.6%(2)
|
14.
|
Type of Reporting Person*
|
|
IN
|
||
(1) Brian P. Friedman (“Mr. Friedman”) is a managing member of Manager, which is the manager of Jefferies Capital Partners and the managing member of General Partner.
|
||
(2) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 8 of 15 Pages
|
1.
|
NAME OF REPORTING PERSON
|
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
|
|
James L. Luikart
|
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) [ ]
|
|
(b) [X]
|
|
3.
|
SEC USE ONLY
|
4.
|
SOURCE OF FUNDS*
|
AF
|
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
|
|
Not applicable
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
United States
|
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
|
7.
|
SOLE VOTING POWER |
0
|
|||
8.
|
SHARED VOTING POWER |
4,085,109(1)
|
||||
9.
|
SOLE DISPOSITIVE POWER |
0
|
||||
10.
|
SHARED DISPOSITIVE POWER |
4,085,109(1)
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person |
4,085,109(1)
|
12.
|
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares*
|
|
Not Applicable
|
||
13.
|
Percent of Class Represented By Amount In Row (11) |
17.6%(2)
|
14.
|
Type of Reporting Person*
|
|
IN
|
||
(1) James L. Luikart (“Mr. Luikart”) is a managing member of Manager, which is the manager of Jefferies Capital Partners and the managing member of General Partner.
|
||
(2) Based on 23,161,822 shares of Common Stock outstanding as of May 8, 2012, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 9 of 15 Pages
|
|
(v)
|
Jefferies Capital Partners LLC (f/k/a Jefferies Capital Partners IV LLC), a Delaware limited liability company (“Manager”), whose principal business is to provide management and advisory services to Jefferies Capital Partners and General Partner. As a result of its roles as manager of Jefferies Capital Partners and managing member of General Partner, Manager may be deemed to be the beneficial owner of the shares of Common Stock beneficially owned by Jefferies Capital Partners and General Partner.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 10 of 15 Pages
|
(a)
|
Based upon certain representations made by the Company in the Company’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2012, there were 23,161,822 shares of Common Stock outstanding as of May 8, 2012. As of June 4, 2012, and after giving effect to the Stock Sales (as described and defined in Item 5(c) below), (i) Jefferies Capital Partners IV beneficially owned 3,546,883 shares of Common Stock, or approximately 15.3% of the Common Stock deemed issued and outstanding, (ii) Jefferies Employee Partners beneficially owned 408,518 shares of Common Stock, or approximately 1.8% of the Common Stock deemed issued and outstanding, (iii) JCP Partners beneficially owned 129,708 shares of Common Stock, or approximately 0.6% of the Common Stock deemed issued and outstanding, (iv) General Partner, as a result of its roles as general partner of Jefferies Capital Partners IV and managing member of each of Jefferies Employee Partners and JCP Partners, may be deemed to be the beneficial owner, in the aggregate, of 4,085,109 shares of Common Stock, or approximately 17.6% of the Common Stock deemed issued and outstanding, which number consists of (A) 3,546,883 shares of Common Stock, or approximately 15.3% of the Common Stock, which is beneficially owned by Jefferies Capital Partners IV, (B) 408,518 shares of Common Stock, or approximately 1.8% of the Common Stock, which is beneficially owned by Jefferies Employee Partners, and (C) 129,708 shares of Common Stock, or approximately 0.6% of the Common Stock, which is beneficially owned by JCP Partners, (v) Manager, as a result of its roles as manager of Jefferies Capital Partners and managing member of General Partner, may be deemed to be the beneficial owner, in the aggregate, of 4,085,109 shares of Common Stock, or approximately 17.6% of the Common Stock deemed issued and outstanding, which number consists of (A) 3,546,883 shares of Common Stock, or approximately 15.3% of the Common Stock, which is beneficially owned by Jefferies Capital Partners IV, (B) 408,518 shares of Common Stock, or approximately 1.8% of the Common Stock, which is beneficially owned by Jefferies Employee Partners, and (C) 129,708 shares of Common Stock, or approximately 0.6% of the Common Stock, which is beneficially owned by JCP Partners, (vi) Mr. Friedman, as a result of his position as a managing member of Manager, may be deemed to be the beneficial owner, in the aggregate, of 4,085,109 shares of Common Stock, or approximately 17.6% of the Common Stock deemed issued and outstanding, which number consists of (A) 3,546,883 shares of Common Stock, or approximately 15.3% of the Common Stock, which is beneficially owned by Jefferies Capital Partners IV, (B) 408,518 shares of Common Stock, or approximately 1.8% of the Common Stock, which is beneficially owned by Jefferies Employee Partners, and (C) 129,708 shares of Common Stock, or approximately 0.6% of the Common Stock, which is beneficially owned by JCP Partners, and (vii) Mr. Luikart, as a result of his position as a managing member of Manager, may be deemed to be the beneficial owner, in the aggregate, of 4,085,109 shares of Common Stock, or approximately 17.6% of the Common Stock deemed issued and outstanding, which number consists of (A) 3,546,883 shares of Common Stock, or approximately 15.3% of the Common Stock, which is beneficially owned by Jefferies Capital Partners IV, (B) 408,518 shares of Common Stock, or approximately 1.8% of the Common Stock, which is beneficially owned by Jefferies Employee Partners, and (C) 129,708 shares of Common Stock, or approximately 0.6% of the Common Stock, which is beneficially owned by JCP Partners.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 11 of 15 Pages
|
(b)
|
Jefferies Capital Partners IV shares with Manager, General Partner, Mr. Friedman and Mr. Luikart the power to vote and dispose of 3,546,883 shares of Common Stock of which it is deemed the beneficial owner. Jefferies Employee Partners shares with Manager, General Partner, Mr. Friedman and Mr. Luikart the power to vote and dispose of 408,518 shares of Common Stock of which it is deemed the beneficial owner. JCP Partners shares with Manager, General Partner, Mr. Friedman and Mr. Luikart the power to vote and dispose of 129,708 shares of Common Stock of which it is deemed the beneficial owner. Each of Manager, General Partner, Mr. Friedman and Mr. Luikart shares the power to vote 4,085,109 shares of Common Stock of which it may be deemed the beneficial owner. None of Jefferies Capital Partners IV, Jefferies Employee Partners, JCP Partners, General Partner, Manager, Mr. Friedman or Mr. Luikart has the sole power to vote or dispose of any shares of Common Stock of which it is or may be deemed to be the beneficial owner.
|
(c)
|
On June 4, 2012, Jefferies Capital Partners consummated the following sales (the “Stock Sales”) of Common Stock: (i) Jefferies Capital Partners IV sold 2,148,589 shares of Common Stock in an open market transaction pursuant to Rule 144, (ii) Jefferies Employee Partners sold 247,467 shares of Common Stock in an open market transaction pursuant to Rule 144 and (iii) JCP Partners sold 78,574 shares of Common Stock in an open market transaction pursuant to Rule 144, in each case, at a purchase price of $5.0336 per share. Other than the transactions described in this Amendment No. 1, during the past sixty days, there were no transactions in Common Stock, or securities convertible into, exercisable for or exchangeable for Common Stock, by the Reporting Persons.
|
(d)
|
(i)
|
The partners of Jefferies Capital Partners IV have the right to receive dividends from, or proceeds from the sale of, all or some of the shares of Common Stock held for the account of Jefferies Capital Partners IV.
|
|
(ii)
|
The members of Jefferies Employee Partners and JCP Partners have the right to receive dividends from, or proceeds from the sale of, all or some of the shares of Common Stock held for the account of Jefferies Employee Partners and JCP Partners, as the case may be.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 12 of 15 Pages
|
|
(iii)
|
The members of Manager and General Partner have the right to receive dividends from, or proceeds from the sale of, all or some of the shares of Common Stock held for the account of Jefferies Capital Partners.
|
(e)
|
Not applicable.
|
(a)
|
if the matter concerned is a proposed merger, consolidation, reorganization, dissolution or similar transaction of the Company, or a proposed sale or disposition of all or substantially all of the assets or business of the Company (in each case requiring the vote of the shareholders of the Company pursuant to the General Corporation Law of the State of Delaware or otherwise), in the sole and absolute discretion of Jefferies Capital Partners;
|
(b)
|
if the matter concerned is a stockholder approval in connection with (i) the removal of certain restrictions (such restrictions, the “Issuance Limitation”) contained in that certain Certificate of Designation of Series A Convertible Preferred Stock (the “Series A Stock”) filed by the Company with the Secretary of State of the State of Delaware on May 29, 2012 (the “Certificate of Designation”), on the issuance of shares of Common Stock upon the conversion of Series A Stock (the “Conversion Shares”) to the extent that such shares of Common Stock, after giving effect to such issuance after conversion and when added to the number of shares of Common Stock previously issued upon the conversion of any shares of Series A Stock, would exceed a certain maximum percentage of the outstanding shares of Common Stock, and (ii) the permitting of such issuances, in each case, in accordance with applicable NASDAQ Stock Market Rules, in the sole and absolute discretion of Jefferies Capital Partners; and
|
(c)
|
for all other matters, in the same proportions as the shares of Common Stock voted on such matters, or as to which consent shall have been given in lieu of such vote, by the holders of Common Stock other than Jefferies Capital Partners, taken as a whole.
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 13 of 15 Pages
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 14 of 15 Pages
|
Exhibit Number
|
Description
|
1
|
Joint Filing Agreement between Jefferies Capital Partners IV LP, Jefferies Employee Partners IV LLC, JCP Partners IV LLC, Jefferies Capital Partners LLC, Brian P. Friedman and James L. Luikart
|
2
|
Voting Agreement, dated as of July 27, 2011, between Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV LP, Jefferies Employee Partners IV LLC and JCP Partners IV LLC
|
3
|
First Amendment to Voting Agreement, dated effective as of May 30, 2012, by and among Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV LP, Jefferies Employee Partners IV LLC, and JCP Partners IV LLC
|
4
|
Voting Agreement, dated as of March 26, 2012, between Jefferies Capital Partners IV LP and Burger King Corporation
|
5
|
Voting Agreement, dated as of March 26, 2012, between Jefferies Employee Partners IV LLC and Burger King Corporation
|
6
|
Voting Agreement, dated as of March 26, 2012, between JCP Partners IV LLC and Burger King Corporation
|
SCHEDULE 13D/A
|
||||||
CUSIP No.: 14574X104
|
13D/A
|
Page 15 of 15 Pages
|
JEFFERIES CAPITAL PARTNERS IV LP
|
|
JEFFERIES EMPLOYEE PARTNERS IV LLC
|
|
JCP PARTNERS IV LLC
|
|
By: JEFFERIES CAPITAL PARTNERS LLC,
|
|
as Manager
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
JCP IV LLC
|
|
By: JEFFERIES CAPITAL PARTNERS LLC,
|
|
as Managing Member
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
JEFFERIES CAPITAL PARTNERS LLC
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
/s/ Brian P. Friedman
|
|
Brian P. Friedman
|
|
/s/ James L. Luikart
|
|
James L. Luikart
|
|
JEFFERIES CAPITAL PARTNERS IV LP
|
|
JEFFERIES EMPLOYEE PARTNERS IV LLC
|
|
JCP PARTNERS IV LLC
|
|
By: JEFFERIES CAPITAL PARTNERS LLC,
|
|
as Manager
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
JCP IV LLC
|
|
By: JEFFERIES CAPITAL PARTNERS LLC,
|
|
as Managing Member
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
JEFFERIES CAPITAL PARTNERS LLC
|
|
By: /s/ Brian P. Friedman
|
|
Name: Brian P. Friedman
|
|
Title: Managing Member
|
|
/s/ Brian P. Friedman
|
|
Brian P. Friedman
|
|
/s/ James L. Luikart
|
|
James L. Luikart
|
|
Carrols Restaurant Group, Inc.
|
|
968 James Street
|
|
Syracuse, New York 13203
|
|
Attention: Joseph A. Zirkman
|
|
Fax: (315) 475-9616
|
|
Email: jzirkman@carrols.com
|
Katten Muchin Rosemann LLP
|
|
575 Madison Avenue
|
|
New York, New York 10022
|
|
Attention: Wayne A. Wald, Esq.
|
|
Fax: (212) 894-5508
|
|
Email: wayne.wald@kattenlaw.com
|
Jefferies Capital Partners IV L.P.
|
|
Jefferies Employee Partners IV LLC
|
|
JCP Partners IV LLC
|
|
520 Madison Avenue, 10th Floor
|
|
New York, New York 10022
|
|
Attention: Brian P. Friedman
|
|
Fax: (212) 284-1717
|
|
Email: bfriedman@jefferies.com
|
Stroock & Stroock & Lavan LLP
|
|
180 Maiden Lane
|
|
New York, New York 10038
|
|
Attention: Melvin Epstein, Esq.
|
|
Fax: (212) 806−7864
|
|
Email: mepstein@stroock.com
|
CARROLS RESTAURANT GROUP, INC.
|
||
By:
|
/s/ Joseph Zirkman
|
|
Name: Joseph Zirkman
|
||
Title: Vice President
|
||
JEFFERIES CAPITAL PARTNERS IV L.P.,
|
||
JEFFERIES EMPLOYEE PARTNERS IV LLC,
|
||
JCP PARTNERS IV LLC
|
||
By:
|
Jefferies Capital Partners IV LLC, as Manager
|
|
By:
|
/s/ Brian P. Friedman
|
|
Name:
|
||
Title: Managing Member
|
||
COMPANY:
|
||||
CARROLS RESTAURANT GROUP, INC.
|
||||
By:
|
/s/ William E. Myers
|
|||
Name:
|
William E. Myers
|
|||
Title:
|
Vice President
|
JEFFERIES CAPITAL PARTNERS:
|
|||
JEFFERIES CAPITAL PARTNERS IV L.P. JEFFERIES EMPLOYEE PARTNERS IV LLC JCP PARTNERS IV LLC
|
|||
By: Jefferies Capital Partners IV LLC, as Manager
|
|||
By:
|
/s/ James Luikart
|
||
Name:
|
|||
Title:
|
|
(a)
|
(i) Stockholder owns beneficially (as such term is defined in Rule 13d-3 under the Exchange Act) all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto and the Existing Voting Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
|
|
(b)
|
Stockholder does not beneficially own any shares of Company Common Stock other than (i) the Original Shares and (ii) any options, warrants or other rights to acquire any additional shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock, set forth on the signature page of this Agreement (collectively, “Options”).
|
|
(c)
|
Subject to the effectiveness of the Amendment (as hereinafter defined), Stockholder has full entity power and authority to enter into, execute and deliver this Agreement and to perform fully Stockholder’s obligations hereunder (including the proxy described in Section 3(b) below). Subject to the effectiveness of the Amendment, this Agreement has been duly and validly executed and delivered by Stockholder and constitutes the legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or creditors’ rights generally or principles of equity.
|
|
(d)
|
Subject to the effectiveness of the Amendment, none of the execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Stockholder or to Stockholder’s property or assets.
|
|
(e)
|
Subject to the effectiveness of the Amendment, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder is required in connection with the valid execution and delivery of this Agreement. If Stockholder is an individual, no consent of Stockholder’s spouse is necessary under any “community property” or other laws in order for Stockholder to enter into and perform its obligations under this Agreement.
|
|
(a)
|
Stockholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to vote or execute a written consent or consents if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any such annual or special meeting of stockholders of the Company: (i) in favor of the Issuance Resolutions, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against any action, proposal, transaction or agreement that would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the matters contemplated by the Purchase Agreement or the Issuance Resolutions.
|
|
(b)
|
Stockholder hereby appoints BK and any designee of BK, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement solely with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder with respect to the Shares. The power of attorney granted by Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement.
|
|
(a)
|
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida.
|
|
(b)
|
The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Florida and the federal courts of the United States of America located in the State of Florida in respect of the interpretation and enforcement of the provisions of this Agreement.
|
|
(c)
|
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(c).
|
|
(d)
|
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
|
|
(e)
|
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
|
|
(f)
|
Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
|
|
(g)
|
All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom.
|
|
(h)
|
The obligations of Stockholder set forth in this Agreement shall not be effective or binding upon Stockholder until after such time as (i) the Existing Voting Agreement is duly amended to permit Stockholder to undertake the obligations and agreements provided for herein without violating such agreement (the “Amendment”) and (ii) the Purchase Agreement is executed and delivered by the Company and BK, and the parties agree that there is not and has not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.
|
|
(i)
|
Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that BK may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the provisions of this Section 11(i) shall be null and void.
|
[SIGNATURE PAGE FOLLOWS]
|
BURGER KING CORPORATION
|
|||
By:
|
/s/ Craig S. Prusher
|
||
Name:
|
Craig S. Prusher
|
||
Title:
|
Vice President
|
||
JEFFERIES CAPITAL PARTNERS IV L.P.
|
|||
By:
|
JEFFERIES CAPITAL PARTNERS LLC,
its manager
|
||
By:
|
/s/ James L. Luikart
|
||
Name:
|
James L. Luikart
|
||
Title:
|
Executive Vice President
|
||
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement: 5,695,472
|
|||
Number of Options Beneficially Owned as of the Date of this Agreement: N/A
|
|||
Street Address: 520 Madison Avenue, 10th Floor
|
|||
City/State/Zip Code: New York, New York 10022
|
|||
Fax: (212) 284-1717
|
|
(a)
|
(i) Stockholder owns beneficially (as such term is defined in Rule 13d-3 under the Exchange Act) all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto and the Existing Voting Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
|
|
(b)
|
Stockholder does not beneficially own any shares of Company Common Stock other than (i) the Original Shares and (ii) any options, warrants or other rights to acquire any additional shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock, set forth on the signature page of this Agreement (collectively, “Options”).
|
|
(c)
|
Subject to the effectiveness of the Amendment (as hereinafter defined), Stockholder has full entity power and authority to enter into, execute and deliver this Agreement and to perform fully Stockholder’s obligations hereunder (including the proxy described in Section 3(b) below). Subject to the effectiveness of the Amendment, this Agreement has been duly and validly executed and delivered by Stockholder and constitutes the legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or creditors’ rights generally or principles of equity.
|
|
(d)
|
Subject to the effectiveness of the Amendment, none of the execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Stockholder or to Stockholder’s property or assets.
|
|
(e)
|
Subject to the effectiveness of the Amendment, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder is required in connection with the valid execution and delivery of this Agreement. If Stockholder is an individual, no consent of Stockholder’s spouse is necessary under any “community property” or other laws in order for Stockholder to enter into and perform its obligations under this Agreement.
|
|
(a)
|
Stockholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to vote or execute a written consent or consents if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any such annual or special meeting of stockholders of the Company: (i) in favor of the Issuance Resolutions, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against any action, proposal, transaction or agreement that would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the matters contemplated by the Purchase Agreement or the Issuance Resolutions.
|
|
(b)
|
Stockholder hereby appoints BK and any designee of BK, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement solely with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder with respect to the Shares. The power of attorney granted by Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement.
|
|
(a)
|
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida.
|
|
(b)
|
The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Florida and the federal courts of the United States of America located in the State of Florida in respect of the interpretation and enforcement of the provisions of this Agreement.
|
|
(c)
|
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(c).
|
|
(d)
|
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
|
|
(e)
|
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
|
|
(f)
|
Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
|
|
(g)
|
All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom.
|
|
(h)
|
The obligations of Stockholder set forth in this Agreement shall not be effective or binding upon Stockholder until after such time as (i) the Existing Voting Agreement is duly amended to permit Stockholder to undertake the obligations and agreements provided for herein without violating such agreement (the “Amendment”) and (ii) the Purchase Agreement is executed and delivered by the Company and BK, and the parties agree that there is not and has not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.
|
|
(i)
|
Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that BK may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the provisions of this Section 11(i) shall be null and void.
|
[SIGNATURE PAGE FOLLOWS]
|
BURGER KING CORPORATION
|
|||
By:
|
/s/ Craig S. Prusher
|
||
Name:
|
Craig S. Prusher
|
||
Title:
|
Vice President
|
||
JEFFERIES EMPLOYEE PARTNERS IV LLC
|
|||
By:
|
JEFFERIES CAPITAL PARTNERS LLC,
its manager
|
||
By:
|
/s/ James L. Luikart
|
||
Name:
|
James L. Luikart
|
||
Title:
|
Executive Vice President
|
||
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement: 655,985
|
|||
Number of Options Beneficially Owned as of the Date of this Agreement: N/A
|
|||
Street Address: 520 Madison Avenue, 10th Floor
|
|||
City/State/Zip Code: New York, New York 10022
|
|||
Fax: (212) 284-1717
|
|
(a)
|
(i) Stockholder owns beneficially (as such term is defined in Rule 13d-3 under the Exchange Act) all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto and the Existing Voting Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
|
|
(b)
|
Stockholder does not beneficially own any shares of Company Common Stock other than (i) the Original Shares and (ii) any options, warrants or other rights to acquire any additional shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock, set forth on the signature page of this Agreement (collectively, “Options”).
|
|
(c)
|
Subject to the effectiveness of the Amendment (as hereinafter defined), Stockholder has full entity power and authority to enter into, execute and deliver this Agreement and to perform fully Stockholder’s obligations hereunder (including the proxy described in Section 3(b) below). Subject to the effectiveness of the Amendment, this Agreement has been duly and validly executed and delivered by Stockholder and constitutes the legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or creditors’ rights generally or principles of equity.
|
|
(d)
|
Subject to the effectiveness of the Amendment, none of the execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Stockholder or to Stockholder’s property or assets.
|
|
(e)
|
Subject to the effectiveness of the Amendment, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder is required in connection with the valid execution and delivery of this Agreement. If Stockholder is an individual, no consent of Stockholder’s spouse is necessary under any “community property” or other laws in order for Stockholder to enter into and perform its obligations under this Agreement.
|
|
(a)
|
Stockholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to vote or execute a written consent or consents if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any such annual or special meeting of stockholders of the Company: (i) in favor of the Issuance Resolutions, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against any action, proposal, transaction or agreement that would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the matters contemplated by the Purchase Agreement or the Issuance Resolutions.
|
|
(b)
|
Stockholder hereby appoints BK and any designee of BK, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement solely with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the performance of the duties of Stockholder under this Agreement. Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder with respect to the Shares. The power of attorney granted by Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement.
|
|
(a)
|
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida.
|
|
(b)
|
The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Florida and the federal courts of the United States of America located in the State of Florida in respect of the interpretation and enforcement of the provisions of this Agreement.
|
|
(c)
|
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(c).
|
|
(d)
|
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
|
|
(e)
|
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
|
|
(f)
|
Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
|
|
(g)
|
All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom.
|
|
(h)
|
The obligations of Stockholder set forth in this Agreement shall not be effective or binding upon Stockholder until after such time as (i) the Existing Voting Agreement is duly amended to permit Stockholder to undertake the obligations and agreements provided for herein without violating such agreement (the “Amendment”) and (ii) the Purchase Agreement is executed and delivered by the Company and BK, and the parties agree that there is not and has not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.
|
|
(i)
|
Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that BK may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the provisions of this Section 11(i) shall be null and void.
|
[SIGNATURE PAGE FOLLOWS]
|
BURGER KING CORPORATION
|
|||
By:
|
/s/ Craig S. Prusher
|
||
Name:
|
Craig S. Prusher
|
||
Title:
|
Vice President
|
||
JCP PARTNERS IV LLC
|
|||
By:
|
JEFFERIES CAPITAL PARTNERS LLC,
its manager
|
||
By:
|
/s/ James L. Luikart
|
||
Name:
|
James L. Luikart
|
||
Title:
|
Executive Vice President
|
||
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement: 208,282
|
|||
Number of Options Beneficially Owned as of the Date of this Agreement: N/A
|
|||
Street Address: 520 Madison Avenue, 10th Floor
|
|||
City/State/Zip Code: New York, New York 10022
|
|||
Fax: (212) 284-1717
|