-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HegP7B4YtOhrq/5eI+IFK2zYJre91MC2ZjHkp4urpk38fKpyv0IR+8OTjRfHoTfq /4RoOc4d3LlEOOzGX0iwfQ== 0000950134-03-010169.txt : 20030716 0000950134-03-010169.hdr.sgml : 20030716 20030716154708 ACCESSION NUMBER: 0000950134-03-010169 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030716 GROUP MEMBERS: DAVID EINHORN GROUP MEMBERS: GREENLIGHT CAPITAL LP GROUP MEMBERS: GREENLIGHT CAPITAL OFFSHORE LTD GROUP MEMBERS: GREENLIGHT CAPITAL QUALIFIED LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEW WORLD RESTAURANT GROUP INC CENTRAL INDEX KEY: 0000949373 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 133690261 STATE OF INCORPORATION: DE FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50342 FILM NUMBER: 03789361 BUSINESS ADDRESS: STREET 1: 246 INDUSTRIAL WAY WEST STREET 2: C/O NEW WORLD HOLDINGS CITY: EATONTOWN STATE: NJ ZIP: 07724 BUSINESS PHONE: 7325440155 MAIL ADDRESS: STREET 1: 246 INDUSTRIAL WAY WEST STREET 2: C/O NEW WORLD HOLDINGS CITY: EATONTOWN STATE: NJ ZIP: 07724 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE MANHATTAN BAGEL INC DATE OF NAME CHANGE: 19990413 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE & BAGELS INC / DATE OF NAME CHANGE: 19981007 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE INC DATE OF NAME CHANGE: 19950815 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GREENLIGHT CAPITAL LLC CENTRAL INDEX KEY: 0001040272 IRS NUMBER: 133886851 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 420 LEXINGTON AVE SUITE 875 CITY: NEW YORK STATE: NY ZIP: 10170 BUSINESS PHONE: 2129731900 MAIL ADDRESS: STREET 1: 420 LEXINGTON AVENUE STREET 2: SUITE 875 CITY: NEW YORK STATE: NY ZIP: 10170 SC 13D/A 1 d07468asc13dza.txt AMENDMENT NO. 5 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (AMENDMENT NO. 5) Under the Securities Exchange Act of 1934 NEW WORLD RESTAURANT GROUP, INC. - -------------------------------------------------------------------------------- (Name of Issuer) Shares of Common Stock, no par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 649271103 - -------------------------------------------------------------------------------- (CUSIP NUMBER) GREENLIGHT CAPITAL, L.L.C. 420 Lexington Avenue, Suite 1740 New York, New York 10170 Tel. No.: (212) 973-1900 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) - with copies to - Eliot D. Raffkind Akin, Gump, Strauss, Hauer & Feld, L.L.P. 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4618 (214) 969-2800 June 26, 2003 - -------------------------------------------------------------------------------- (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(e), 13d-1(f) or 13d-1(g) check the following box [ ] The information required in 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, as amended (the "Act"), or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. CUSIP No. 649271103 13D/A - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Greenlight Capital, L.L.C. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 44,126,555 (includes 34,065,204 OWNED BY shares issuable to affiliates of EACH the reporting person upon REPORTING exercise of Warrant Agreements PERSON WITH with the Issuer) ----------------------------------------- 8 SHARED VOTING POWER 0 ----------------------------------------- 9 SOLE DISPOSITIVE POWER 44,126,555 (includes 34,065,204 shares issuable to affiliates of the reporting person upon exercise of Warrant Agreements with the Issuer) ----------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 44,126,555 (includes 34,065,204 shares issuable to affiliates of the reporting person upon exercise of Warrant Agreements with the Issuer) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 51.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 2 of 12 CUSIP No. 649271103 13D/A - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) David Einhorn - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 44,126,555 (includes 34,065,204 OWNED BY shares issuable to affiliates of EACH the reporting person upon REPORTING exercise of Warrant Agreements PERSON WITH with the Issuer) ----------------------------------------- 8 SHARED VOTING POWER 0 ----------------------------------------- 9 SOLE DISPOSITIVE POWER 44,126,555 (includes 34,065,204 shares issuable to affiliates of the reporting person upon exercise of Warrant Agreements with the Issuer) ----------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 44,126,555 (includes 34,065,204 shares issuable to affiliates of the reporting person upon exercise of Warrant Agreements with the Issuer) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 51.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 3 of 12 CUSIP No. 649271103 13D/A - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Greenlight Capital, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 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) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 6,362,320 (includes 5,630,720 OWNED BY shares issuable to the reporting EACH person upon exercise of a Warrant REPORTING Agreement with the Issuer) PERSON WITH ----------------------------------------- 8 SHARED VOTING POWER 0 ----------------------------------------- 9 SOLE DISPOSITIVE POWER 6,362,320 (includes 5,630,720 shares issuable to the reporting person upon exercise of a Warrant Agreement with the Issuer) ----------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,362,320 (includes 5,630,720 shares issuable to the reporting person upon exercise of Warrant Agreements with the Issuer) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 4 of 12 CUSIP No. 649271103 13D/A - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Greenlight Capital Qualified, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 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) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 17,660,822 (includes 14,171,871 OWNED BY shares issuable to the reporting EACH person upon exercise of a Warrant REPORTING Agreement with the Issuer) PERSON WITH ----------------------------------------- 8 SHARED VOTING POWER 0 ----------------------------------------- 9 SOLE DISPOSITIVE POWER 17,660,822 (includes 14,171,871 shares issuable to the reporting person upon exercise of a Warrant Agreement with the Issuer) ----------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,660,822 (includes 14,171,871 shares issuable to the reporting person upon exercise of Warrant Agreements with the Issuer) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 5 of 12 CUSIP No. 649271103 13D/A - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Greenlight Capital Offshore, Ltd. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF, WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 20,103,418 (includes 14,262,618 OWNED BY shares issuable to the reporting EACH person upon exercise of a Warrant REPORTING Agreement with the Issuer) PERSON WITH ----------------------------------------- 8 SHARED VOTING POWER 0 ----------------------------------------- 9 SOLE DISPOSITIVE POWER 20,103,418 (includes 14,262,618 shares issuable to the reporting person upon exercise of a Warrant Agreement with the Issuer) ----------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,103,418 (includes 14,262,618 shares issuable to the reporting person upon exercise of Warrant Agreements with the Issuer) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.8% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT 6 of 12 AMENDMENT NO. 5 TO SCHEDULE 13D This Amendment No. 5 to Schedule 13D (the "Schedule 13D"), relating to shares of common stock of New World Restaurant Group, Inc., f/k/a New World Coffee - Manhattan Bagel, Inc., f/k/a New World Coffee & Bagels, Inc., a Delaware corporation (the "Issuer"), is being filed as an amendment to the statement on Schedule 13D as filed with the Securities and Exchange Commission (the "Commission") on January 30, 2001, as amended by Amendment No. 1 filed with the Commission on February 2, 2001, Amendment No. 2 filed with the Commission on July 2, 2001, Amendment No. 3 filed with the Commission on May 30, 2003 and Amendment No. 4 filed with the Commission on June 20, 2003. This Schedule 13D is filed on behalf of Greenlight Capital, L.L.C., a Delaware limited liability company, and its affiliates ("Greenlight"), Greenlight Capital, L.P., a Delaware limited partnership ("Greenlight Fund"), of which Greenlight is the general partner, Greenlight Capital Offshore, Ltd., a Cayman Islands exempted company ("Greenlight Offshore"), for whom Greenlight Capital Inc., an affiliate of Greenlight Capital, L.L.C., acts as investment advisor, Greenlight Capital Qualified, L.P., a Delaware limited partnership ("Greenlight Qualified"), of which Greenlight is the general partner, and Mr. David Einhorn, principal of Greenlight (the "Principal"). This Schedule 13D relates to shares of Common Stock of the Issuer purchased by Greenlight for the accounts of (i) Greenlight Fund, (ii) Greenlight Qualified, and (iii) Greenlight Offshore (collectively, the "Greenlight Entities"). ITEM 2. IDENTITY AND BACKGROUND (a) This statement is filed by: (i) Greenlight, (ii) Greenlight Fund, (iii) Greenlight Offshore, (iv) Greenlight Qualified, and (v) Mr. David Einhorn. (b) The business address of Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and the Principal is 420 Lexington Avenue, Suite 1740, New York, NY 10170. (c) Greenlight provides investment management services to private individuals and institutions. Greenlight Fund, Greenlight Qualified and Greenlight Offshore are private investment funds. The principal occupation of Mr. Einhorn is investment management. (d) None of Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and the Principal have, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) None of Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and the Principal have, during the last five years, 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 7 of 12 mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) Greenlight is a Delaware limited liability company. Greenlight Fund and Greenlight Qualified are Delaware limited partnerships. Greenlight Offshore is a Cayman Islands exempted company. Mr. David Einhorn is a United States citizen. ITEM 4. PURPOSE OF THE TRANSACTION Item 4 of the Schedule 13D is hereby amended and supplemented by the following paragraphs: Pursuant to that certain Letter Agreement, dated June 19, 2001, among the Greenlight Entities and the Issuer (the "Letter Agreement"), a copy of which is attached as Exhibit 99.8 to Schedule 13D as filed with the Commission on July 2, 2001, the Greenlight Entities allowed the Issuer to pledge those certain bonds (the "Bonds") known as Einstein/Noah Corporation 7.25% convertible subordinated bonds June 2004. According to the Letter Agreement, if certain events occurred, the Bonds would be convertible and the Greenlight Entities would receive warrants. On June 26, 2003, the Bonds held by each of Greenlight Qualified, Greenlight Fund and Greenlight Offshore became convertible into 6,042.354, 2,508.146, and 5,700.334 shares, respectively, of Series F Preferred Stock of the Issuer, as previously requested in the letter dated May 23, 2003 and filed as Exhibit 99.1 to the Third Amendment to Schedule 13D filed with the Commission on May 30, 2003. Upon the Bonds being convertible into Series F Preferred Stock of the Issuer, the Issuer also issued Common Stock Warrants of the Issuer for 5,082,529 shares of Common Stock to Greenlight Qualified, 2,109,728 shares of Common Stock to Greenlight Fund and 4,794,838 shares of Common Stock to Greenlight Offshore. On June 26, 2003, the Greenlight Entities, Halpern Denny Fund III, L.P. ("HD") and the Issuer entered into an Equity Restructuring Agreement, a copy of which is attached hereto as Exhibit 99.1, pursuant to which the parties agreed to a recapitalization of the Issuer's equity structure (the "Equity Recap"). In the Equity Recap, (a) HD will exchange all of its equity interests in the company for $57.0 million face amount of a new Series Z Preferred Stock and (b) the Greenlight Entities will exchange all of its 61,706.237 shares of Series F Preferred Stock, including the 4,337.481 shares of Series F Preferred Stock to be purchased from Jeffries & Company, Inc. ("Jeffries"), for 938,084,289 shares of Common Stock of the Issuer as detailed below. The Equity Recap is subject to numerous conditions, including, without limitation, approval by the Issuer's shareholders. Assuming the Equity Recap occurs, the Greenlight Entities will beneficially own approximately 92.0% of the Issuer's outstanding Common Stock including the Common Stock that Greenlight currently owns. On June 27, 2003, the Greenlight Entities and certain other holders of the Issuer's Senior Secured Increasing Rate Notes due 2003 and Senior Secured Increasing Rate Notes due 2003, Series B, entered into a Note Purchase and Put Agreement (the "Note Agreement"), a copy of which is attached hereto as Exhibit 99.2, with Jefferies, pursuant to which Greenlight, subject to the terms and conditions of the Note Agreement: 8 of 12 i) agreed, subject to the closing of Jefferies' purchase on or prior to September 27, 2003 of $160,000,000 in aggregate principal amount of the Issuer's 13% Senior Secured Notes due 2008 (the "New Notes") pursuant to the Purchase Agreement dated June 27, 2003 between Jefferies and the Issuer (the "Purchase Agreement"), to purchase $35,000,000 in aggregate principal amount of the New Notes from Jefferies immediately following the closing under the Purchase Agreement; and ii) granted to Jefferies an option to sell to Greenlight on the date of the closing under the Purchase Agreement the aggregate principal amount of the New Notes that Jefferies is unable to sell to third parties up to a maximum of $15,000,000. Jeffries was able to sell all of the New Notes, and the above option granted to Jeffries was not exercised. On July 8, 2003, New World EnbcDeb Corp. ("EnbcDeb"), the Issuer, the Greenlight Entities and Jefferies entered into an amendment (the "Amendment"), to the Note Purchase and Security Agreement dated June 19, 2001 (the "Note Purchase Agreement") among EnbcDeb, the Issuer and Jefferies. A copy of the Amendment is attached hereto as Exhibit 99.3. Pursuant to the terms of the Amendment, the Issuer has agreed to issue to Jefferies, contemporaneously upon the consummation of a refinancing of its existing Senior Secured Increasing rate Notes due 2003 pursuant to a Rule 144A offering of $160,000,000 principal amount of Senior Secured Notes, 4,337.481 shares of its Series F Preferred Stock in full satisfaction of the Issuer's obligations under the Note Purchase Agreement. Immediately upon the issuance of the Series F Preferred Stock, Greenlight has agreed to purchase such shares of Series F Preferred Stock from Jefferies for aggregate consideration of $2,770,000, payable in cash. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 of the Schedule 13D is hereby amended and restated in its entirety as follows: (a) As of June 30, 2003, Greenlight and Mr. Einhorn beneficially own 44,126,555 shares of Common Stock of the Issuer (which includes 34,065,204 shares issuable to Greenlight Fund, Greenlight Offshore and Greenlight Qualified upon exercise of the Warrants), which represents 51.9% of the Issuer's outstanding shares of Common Stock, which such percentage was calculated by dividing (i) the 44,126,555 shares of Common Stock beneficially owned by Greenlight and Mr. Einhorn as of the date hereof, by (ii) 85,082,061 shares of Common Stock, which equals the sum of (y) 51,016,857 shares of Common Stock outstanding as of April 30, 2003 based upon the Issuer's 10Q filed with the Commission on May 16, 2003 and (z) 34,065,204 shares of Common Stock underlying the Warrants. The 34,065,204 shares of Common Stock underlying the Warrants described above are beneficially owned by Greenlight and Mr. Einhorn for the account of Greenlight Fund, Greenlight Offshore or Greenlight Qualified, as the case may be. 9 of 12 As of June 30, 2003, Greenlight Fund beneficially owns 6,362,370 shares of Common Stock of the Issuer (which includes 5,630,720 shares issuable to the reporting persons upon exercise of its Warrants), which represents 11.2% of the Issuer's outstanding shares of Common Stock, which such percentage was calculated by dividing (i) the 5,630,720 shares of Common Stock beneficially owned by Greenlight Fund as of the date hereof, by (ii) 56,647,577 shares of Common Stock, which equals the sum of (y) 51,016,857 shares of Common Stock outstanding as of April 30, 2003 based upon the Issuer's 10Q filed with the Commission on May 16, 2003 and (z) 5,630,720 shares of Common Stock underlying its Warrants. As of June 30, 2003, Greenlight Qualified beneficially owns 17,660,822 shares of Common Stock of the Issuer (which includes 14,171,871 shares issuable to the reporting persons upon exercise of its Warrants), which represents 27.1% of the Issuer's outstanding shares of Common Stock, which such percentage was calculated by dividing (i) the 17,660,822 shares of Common Stock beneficially owned by Greenlight Qualified as of the date hereof, by (ii) 65,188,728 shares of Common Stock, which equals the sum of (y) 51,016,857 shares of Common Stock outstanding as of April 30, 2003 based upon the Issuer's 10Q filed with the Commission on May 16, 2003 and (z) 14,171,871 shares of Common Stock underlying its Warrants. As of June 30, 2003, Greenlight Offshore beneficially owns 20,103,418 shares of Common Stock of the Issuer (which includes 14,262,618 shares issuable to the reporting persons upon exercise of its Warrants), which represents 30.80% of the Issuer's outstanding shares of Common Stock, which such percentage was calculated by dividing (i) the 20,103,418 shares of Common Stock beneficially owned by Greenlight Offshore as of the date hereof, by (ii) 65,279,475 shares of Common Stock, which equals the sum of (y) 51,016,857 shares of Common Stock outstanding as of April 30, 2003 based upon the Issuer's 10Q filed with the Commission on May 16, 2003 and (z) 14,262,618 shares of Common Stock underlying its Warrants. (b) Greenlight and Mr. Einhorn for the account of each of Greenlight Fund, Greenlight Offshore and Greenlight Qualified have the power to vote and dispose of the shares of Common Stock held by each such entity. (c) Other than as described in Items 3 and 4 above and Items 3 and 4 of Amendment No. 3 filed with the Commission on May 30, 2003, none of Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and the Principals have engaged in any transactions in the Common Stock within the past 60 days. (d) Not Applicable. (e) Not Applicable. 10 of 12 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Except as set forth in Item 4 of this Schedule 13D, as amended, none of Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and the Principal have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of Issuer, including but not limited to transfer or voting of any of the securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 99.1 Equity Restructuring Agreement dated June 26, 2003, among New World Restaurant Group, Inc., Greenlight Capital, L.P., Greenlight Qualified, L.P., Greenlight Capital Offshore, Ltd., Brookwood New World Investors, L.L.C., NWCI Holdings, LLC and Halpern Denny Fund III, L.P. Exhibit 99.2 Note Purchase and Put Agreement, dated June 27, 2003, among Jefferies & Company, Inc. and the purchasers set forth on Annex A thereto. Exhibit 99.3 Amendment, to Note Purchase and Security Agreement dated July 8, 2003, among New World EncDeb Corp., New World Restaurant Group, Inc., Greenlight Capital, L.P., Greenlight Qualified, L.P., Greenlight Capital Offshore, Ltd. and Jefferies & Company, Inc. Exhibit 99.9 Joint Filing Agreement dated June 20, 2003, among Greenlight, Greenlight Fund, Greenlight Qualified, Greenlight Offshore and Mr. Einhorn. 11 of 12 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: July 15, 2003 GREENLIGHT CAPITAL, L.L.C. By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL, L.P. By: Greenlight Capital, L.L.C., its general partner By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL QUALIFIED, L.P. By: Greenlight Capital, L.L.C., its general partner By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL OFFSHORE, LTD. By: Greenlight Capital, Inc., its investment advisor By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, President /s/ DAVID EINHORN ----------------------------------------- David Einhorn 12 of 12 EX-99.1 3 d07468aexv99w1.txt EQUITY RESTRUCTURING AGREEMENT ================================================================================ NEW WORLD RESTAURANT GROUP, INC. EQUITY RESTRUCTURING AGREEMENT June 26, 2003 ================================================================================ TABLE OF CONTENTS
PAGE 1. Exchange of Halpern Denny's Interests in the Company.....................................................2 2. Exchange of Greenlight's Series F Preferred Stock........................................................2 3. Capitalization...........................................................................................2 4. The Closing..............................................................................................3 5. Representations and Warranties by the Company............................................................3 5.1 Organization and Authority of the Company.......................................................3 5.2 Authority of the Company........................................................................3 5.3 No Conflicts; Consents of Third Parties.........................................................4 5.4 Capitalization..................................................................................5 6. Representations and Warranties by the Equity Holders.....................................................6 6.1 Organization and Authority of such Equity Holder................................................6 6.2 Authority of such Equity Holder.................................................................6 6.3 No Conflicts; Consents of Third Parties.........................................................7 6.4 Ownership.......................................................................................8 7. Additional Representations and Warranties of Greenlight and Halpern Denny................................8 8. Further Agreements of the Parties........................................................................8 8.1 Proxy Statement; Company Stockholder Approval...................................................8 8.2 Voting..........................................................................................8 8.3 No Transfers of or Encumbrances on Securities...................................................9 8.4 Waiver of Rights................................................................................9 8.5 Termination of Stockholders Agreement...........................................................9 8.6 Limitation on Accretion.........................................................................9 8.7 Amendment to Warrant Agreement.................................................................10 8.8 Fees and Expenses..............................................................................10 8.9 Further Assurances.............................................................................10 8.10 Withdrawal of Board Recommendation.............................................................10 8.11 "Short Form" Merger............................................................................11
9. Conditions to Closing...................................................................................11 9.1 Conditions to the Obligation of each Equity Holder.............................................11 9.2 Conditions to the Obligations of the Company...................................................13 10. Transactions at the Closing.............................................................................13 10.1 Items to Be Delivered by the Company...........................................................13 10.2 Items to Be Delivered by each Equity Holder....................................................14 11. Termination.............................................................................................14 11.1 Termination....................................................................................14 11.2 Liability......................................................................................15 12. Continuing Director and Officer Indemnification.........................................................15 13. Miscellaneous...........................................................................................15 13.1 Notices........................................................................................15 13.2 Entire Agreement...............................................................................16 13.3 Headings.......................................................................................16 13.4 Governing Law..................................................................................16 13.5 Separability...................................................................................16 13.6 Waiver.........................................................................................16 13.7 Assignment.....................................................................................17 13.8 Jurisdiction...................................................................................17 13.9 No Third Party Beneficiaries...................................................................17 13.10 Counterparts...................................................................................17 14. Fees and Expenses.......................................................................................17 14.1 Greenlight Fees and Expenses...................................................................17 14.2 Halpern Denny Fees and Expenses................................................................17
ii EQUITY RESTRUCTURING AGREEMENT June 26, 2003 The parties to this Agreement are New World Restaurant Group, Inc., a Delaware corporation (the "Company"), Greenlight Capital, L.P., a Delaware limited partnership ("Greenlight Capital"), Greenlight Capital Qualified, L.P., a Delaware limited partnership ("Greenlight Qualified"), Greenlight Capital Offshore, Ltd., a British Virgin Islands company ("Greenlight Offshore"), Brookwood New World Investors, L.L.C., a Delaware limited liability company ("Brookwood"), and NWCI Holdings, LLC, a Delaware limited liability company ("NWCI" and with Brookwood, NWCI, Greenlight Capital, Greenlight Qualified, Greenlight Offshore, "Greenlight") and Halpern Denny Fund III, L.P. ("Halpern Denny" and together with Greenlight, the "Equity Holders"). RECITALS The Company is seeking to refinance its existing senior secured increasing rate notes due 2003 (the "Existing Notes") and, in connection therewith, is engaged in negotiations with respect to (i) an offering pursuant to Rule 144A promulgated under the Securities Act of 1933, as amended, of $160.0 million of senior secured notes due 2008 and (ii) a new senior revolving credit facility secured by substantially all of the assets of the Company and its subsidiaries, other than certain inactive subsidiaries (the "Refinancing"). Greenlight owns 57,368.756 shares of Series F Preferred Stock, par value $0.001 per share of the Company (the "Series F Preferred Stock"), 10,061,351 shares of common stock, par value $0.001 per share of the Company (the "Common Stock"), and warrants to purchase 22,078,114 shares of Common Stock. Halpern Denny owns 56,237.994 shares of Series F Preferred Stock, 23,264,107 shares of Common Stock and warrants to purchase 13,711,054 shares of Common Stock (collectively, the "Halpern Denny Interests"). Pursuant to the terms of an amendment to the Note Purchase and Security Agreement dated June 19, 2001, as amended (the "Note Purchase Agreement"), by and among Jefferies & Company, Inc. ("Jefferies"), the Company and Greenlight, Jefferies agreed to purchase all of the secured increasing rate notes (the "EnbcDeb Corp. Notes") of New World EnbcDeb Corp., a New York corporation ("EnbcDeb Corp."), immediately prior to the consummation of the Refinancing, and the Company has agreed to issue, contemporaneously with the consummation of such Refinancing, 4,337.481 shares of its Series F Preferred Stock to Jefferies in full satisfaction of the Company's obligations under the Note Purchase Agreement. Immediately upon the issuance to Jefferies of the Series F Preferred Stock, Greenlight agreed to purchase such shares of Series F Preferred Stock from Jefferies for aggregate consideration of $2,770,000, payable in cash. Following such purchase, Greenlight will hold 61,706.237 shares of Series F Preferred Stock. This Agreement provides for the restructuring of the Company's capital stock (the "Equity Restructuring"). Accordingly, it is agreed as follows: 1. Exchange of Halpern Denny's Interests in the Company. At the Closing referred to in Section 4, Halpern Denny shall deliver, assign and transfer to the Company, 56,237.994 shares of Series F Preferred Stock, 23,264,107 shares of Common Stock and warrants to purchase 13,711,054 shares of Common Stock, and the Company shall issue to Halpern Denny in exchange therefor 57,000 shares of Series Z Preferred Stock, par value $0.001 per share (the "Series Z Preferred Stock"), which shall have the rights and preferences set forth in the Certificate of Designation, Preferences and Rights of Series Z Preferred Stock (the "Certificate of Designation") attached to this Agreement as Schedule 1. Such shares of Series Z Preferred Stock will not be registered under the Securities Act of 1933, as amended (the "Securities Act") and shall contain a legend stating that such securities have not been registered under the Securities Act and may only be transferred pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act. 2. Exchange of Greenlight's Series F Preferred Stock. At the Closing referred to in Section 4, Greenlight shall deliver, assign and transfer to the Company, 61,706.237 shares of Series F Preferred Stock, and the Company shall issue to Greenlight in exchange therefor 938,084,289 shares of Common Stock (prior to any reverse stock split effect in connection with the Equity Restructuring). Such shares of Common Stock will not be registered under the Securities Act and shall contain a legend stating that such securities have not been registered under the Securities Act and may only be transferred pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act. 3. Capitalization. The Company and the Equity Holders acknowledge and agree that immediately upon the Closing of the transactions contemplated by this Agreement; the Company's capitalization will be as set forth on Schedule 3 attached to this Agreement. 2 4. The Closing. The Closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Proskauer Rose LLP, 1585 Broadway, New York, New York 10036 (or at such other place as the parties may agree upon in writing) on the fifth business day after the conditions specified in Section 9 have been fulfilled (or waived by the applicable parties) or such other date as the parties may agree upon. The date on which the Closing is held is referred to in this Agreement as the "Closing Date." At the Closing, the parties shall take the actions and execute and deliver the documents and other items referred to in Section 9. 5. Representations and Warranties by the Company. The Company represents and warrants to the Equity Holders as follows: 5.1 Organization and Authority of the Company. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the full power, right and authority to enter into and perform this Agreement in accordance with its terms and to own, lease and operate its properties as it now does and to carry on its business as it is presently being conducted. 5.2 Authority of the Company. (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement (other than the approval and adoption of this Agreement and the amendment of the Company's certificate of incorporation by the holders of the Common Stock in accordance with the Delaware General Corporation Law ("Delaware Law") and the Company's certificate of incorporation (the "Company Stockholders' Action")). The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement, other than the Company Stockholders' Action. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties to this Agreement, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general application affecting the enforcement of creditors' rights generally now or hereafter in effect and (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law. 3 (b) The Company's board of directors (the "Company Board") has, by resolutions duly adopted by unanimous vote at a meeting of all directors duly called and held and not subsequently rescinded or modified in any way, (i) duly declared that this Agreement and the transactions contemplated by this Agreement are fair to, and in the best interests of, the Company's stockholders, (ii) authorized, approved and adopted this Agreement and the transactions contemplated by this Agreement, and (iii) recommended that the holders of the Company's Common Stock approve and adopt this Agreement and the transactions contemplated by this Agreement and directed that such matters be submitted to the holders of the Company's Common Stock at a meeting of the holder's of the Company's Common Stock. (c) The Company Board has taken all necessary action so that the restrictions contained in Section 203 of the Delaware Law applicable to a "business combination" (as defined in Section 203) are, and at all times upon or prior to the Closing such restrictions shall be, inapplicable to the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated by this Agreement. (d) The Company Board has taken all necessary action so that (A) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will cause (i) the Rights (as defined in the Rights Agreement) to become exercisable under the Rights Agreement, dated as of June 7, 1999 between the Company and American Stock Transfer & Trust Company, as Rights Agent (the "Rights Agreement"), or (ii) Greenlight to be deemed to be an "Acquiring Person" (as defined in the Rights Agreement). The "Distribution Date" (as defined in the Rights Agreement) has not occurred. (e) The Company Board has received the opinion of CIBC World Markets Corp., financial advisor to the Company, to the effect that, as of the date of this Agreement, the shares of Series Z Preferred Stock and Common Stock to be issued by the Company in the Equity Restructuring in exchange for the Halpern Denny Interests and Greenlight's Series F Preferred Stock is fair, from a financial point of view, to the Company. 5.3 No Conflicts; Consents of Third Parties. (a) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated by this Agreement will not (i) conflict with the certificate of incorporation or by-laws of the Company; (ii) conflict with, or result in the breach or termination of, or constitute a default under any material lease, agreement, commitment or other instrument, or any material order, judgment or decree, to which the Company, is a party or by which the Company, any of its subsidiaries or any of their respective assets or properties is bound or affected; (iii) constitute a breach or violation of any law, regulation, order, writ, judgment, injunction or decree applicable to the Company, any of its 4 subsidiaries or any of their respective assets or properties; or (iv) result in the creation of any claim, lien, security interest, charge or encumbrance upon any of the capital stock of the Company or upon any assets of the Company or any of its subsidiaries. (b) The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement will not, require any consent, approval, authorization of, or declaration or filing with any governmental body, court or other person or entity, except for the filing with the Securities and Exchange Commission (the "SEC") of the proxy statement to be distributed to the holders of the Company Common Stock in connection with the meeting of the holders of the Company's Common Stock to approve the Company Common Stockholders' Action (the "Proxy Statement") under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"). 5.4 Capitalization. (a) The authorized capital stock of the Company consists of 150,000,000 shares of Common Stock and 2,000,000 shares of preferred stock, par value $0.001 per share. The Company designated 116,000 shares of preferred stock as Series F Preferred Stock. As of June 15, 2003, (i) 51,016,857 shares of Common Stock were issued and outstanding, (ii) no shares of Common Stock were held in the treasury of the Company, (iii) 94,349.053 shares of Series F Preferred Stock were issued and outstanding (including 16,093.883 shares representing accrued and unpaid dividends due on outstanding shares of Series F Preferred Stock), (iv) no shares of Series F Preferred Stock were held in the treasury of the Company, (v) 25,000 shares of Series D Preferred Stock of the Company, par value $.001 per share, were designated, (vi) no shares of Series D Preferred Stock were issued and outstanding, (vii) 500,000 shares of Series C Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (viii) no shares of Series C Convertible Preferred Stock were issued and outstanding, (ix) 225 shares of Series B Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (x) no shares of Series B Convertible Preferred Stock were issued and outstanding, (xi) 400 shares of Series A Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (xii) no shares of Series A Convertible Preferred Stock were issued and outstanding, (xiii) 5,266,442 shares of Common Stock were reserved for issuance pursuant to outstanding options, and (xiv) 58,133,784 shares of Common Stock were reserved for issuance pursuant to outstanding warrants. (b) Schedule 5.4(b) sets forth a true and complete list of each current or former employee, officer, director or consultant of the Company or any of its subsidiaries who holds an option to purchase Common Stock ("Options") as of June 15, 2003, together with the number of shares of Common Stock subject to such option, the date of grant of such Option, the 5 exercise price of such Option, the expiration date of such Option, the vesting schedule for such Option. (c) Schedule 5.4(c) sets forth a true and complete list of all warrants, rights and other securities (other than Options) convertible into or exchangeable or exercisable for, Common Stock as of June 15, 2003, together with the number of shares of Common Stock subject to such warrant, right or security, the date of grant of such warrant, right or security, the exercise or conversion price of such warrant, right or security the expiration date of such warrant, and the vesting schedule, if any, for such warrant, right or security. (d) Except as set forth on Schedule 5.4(b), 5.4(c) or 5.4(d) and as contemplated by this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or preemptive rights relating to the issued or unissued capital stock of the Company any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, transfer, deliver or sell, or cause to be issued, transferred, delivered or sold, any shares of capital stock of, or any securities directly or indirectly convertible into or exercisable or exchangeable for any shares of capital stock of, the Company or any of its subsidiaries, all of which will be subject to the restructuring contemplated by this Agreement. (e) No holder of any securities of the Company is entitled to any anti-dilution or similar protections or rights, except with respect to the securities set forth on Schedule 5.4(d). (f) Upon the consummation of the Equity Restructuring, the Company's capitalization will be as set forth on Schedule 3 attached to this Agreement. 6. Representations and Warranties by the Equity Holders. Each of the Equity Holders severally and not jointly, with respect to itself only, represents and warrants to the Company as follows: 6.1 Organization and Authority of such Equity Holder. Such Equity Holder is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation or organization and has the full power, right and authority to enter into and perform this Agreement in accordance with its terms. 6.2 Authority of such Equity Holder. Such Equity Holder has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by such Equity Holder and the consummation by such 6 Equity Holder of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary action on the part of such Equity Holder, and no other proceedings on the part of such Equity Holder is necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by such Equity Holder and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties to this Agreement, constitutes a legal, valid and binding obligation of such Equity Holder, enforceable against such Equity Holder in accordance with its terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general application affecting the enforcement of creditors' rights generally now or hereafter in effect and (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law. 6.3 No Conflicts; Consents of Third Parties. (a) The execution, delivery and performance of this Agreement by such Equity Holder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with the constitutive agreements of such Equity Holder; (ii) conflict with, or result in the breach or termination of, or constitute a default under any material lease, agreement, commitment or other instrument, or any material order, judgment or decree, to which such Equity Holder, is a party or by which it is bound; or (iii) constitute a violation by such Equity Holder of any law, regulation, order, writ, judgment, injunction or decree applicable to it. (b) The execution and delivery of this Agreement by such Equity Holder does not, and the performance of this Agreement by such Equity Holder and the consummation by such Equity Holder of the transactions contemplated by this Agreement will not, require any consent, approval, authorization of, or declaration or filing with any governmental body, court or other person or entity, other than filings pursuant to applicable securities laws. 7 6.4 Ownership. Such Equity Holder owns the number of shares of Series F Preferred Stock, Common Stock and warrants to purchase Common Stock set forth opposite its name on Schedule 6.4. 7. Additional Representations and Warranties of Greenlight and Halpern Denny. Greenlight and Halpern Denny have executed and delivered the Consent and Waiver Agreement dated June 26, 2003, and the Consent and Waiver Agreement has not been superseded, amended or terminated. 8. Further Agreements of the Parties. 8.1 Proxy Statement; Company Stockholder Approval. (a) As promptly as practicable after the consummation of the Refinancing, the Company shall prepare and file the Proxy Statement with the SEC. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC on the Proxy Statement. (b) The Company shall notify the other parties hereto of the receipt of any comments from the SEC relating to the Proxy Statement. (c) The Company shall, in accordance with Delaware Law and the Company's certificate of incorporation and by-laws, call, hold and convene a special meeting of the holders of the Common Stock (the "Company Stockholders' Meeting") to consider and vote upon the approval and adoption of the Company Stockholders' Action. The Company Board shall recommend the approval and adoption of the Company Stockholders' Action by the holders of the Common Stock and shall include such recommendation in the notice of and in the Proxy Statement. The Company will use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the holders of the Common Stock as promptly as practicable after the SEC has no further comments on the Proxy Statement. The Company shall take all lawful action to solicit from the holders of the Common Stock proxies in favor of the approval and adoption of the Company Stockholders' Action and will take all other action necessary or advisable to secure the vote or consent of the holders of the Common Stock required by Delaware Law to obtain such approvals. 8.2 Voting. Each Equity Holder shall vote all of its shares of Common Stock that such Equity Holder is entitled to vote at the Company Stockholders' Meeting in favor of the approval and adoption of the Company Stockholders' Action. Each Equity Holder shall not vote any of its shares of Common Stock that such Equity Holder is entitled to vote at the Company 8 Stockholders' Meeting, in favor of the approval of any corporate action that would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by this Agreement. 8.3 No Transfers of or Encumbrances on Securities. Except pursuant to the terms of this Agreement, no Equity Holder shall, without the prior written consent of the Company, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any of its shares of capital stock of the Company or (ii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, any of its shares of capital stock of the Company during the term of this Agreement. No Equity Holder shall seek or solicit any such sale, assignment, transfer, encumbrance or other disposition or any such contract, option or other arrangement or understanding and agrees to notify the Company promptly, and to provide all details requested by the Company, if that Equity Holder shall be approached or solicited, directly or indirectly, by any person with respect to any of the foregoing. 8.4 Waiver of Rights. Each Equity Holder waives any preemptive rights and rights to anti-dilution protection that such Equity Holder may possess pursuant to any warrants, rights and other securities issued to such Equity Holder by the Company or agreements with the Company in connection with (i) the Equity Restructuring and (ii) any Common Stock, options, rights and other securities exercisable for Common Stock that may be issued to any of the Company's or its subsidiaries' officers or employees pursuant to any management incentive plans approved and adopted by the Company Board and stockholders. 8.5 Termination of Stockholders Agreement. Immediately prior to the Closing, the Company, Halpern Denny and Greenlight shall cause the Stockholders Agreement dated January 18, 2001, as amended March 29, 2001, June 19, 2001 and July 9, 2001 by and among the Company, BET Associates, L.P., Brookwood, Halpern Denny and Greenlight (the "Stockholders Agreement") to be terminated. 8.6 Limitation on Accretion. Notwithstanding anything to the contrary contained in the LLC Agreement, the Bond Purchase Agreement or the letter agreement dated as of June 19, 2001 (the "Side Letter"), among Greenlight Capital, Greenlight Qualified and Greenlight Offshore, the Company and Greenlight New World, L.L.C. (the "LLC"), the LLC Agreement and the Bond Purchase Agreement (each, as defined in the Side Letter), in the event (and only in the event) of the consummation of the Equity Restructuring, the Contribution Amount (as defined in the Bond Purchase Agreement) shall be calculated as of June 30, 2003, without accretion thereafter, regardless of the date upon which the Equity Restructuring is consummated, for purposes of determining the number of warrants to purchase shares of Common Stock and shares of Series F Preferred Stock issuable to Greenlight Capital, Greenlight Qualified and Greenlight Offshore pursuant to the Side Letter. The warrants to purchase Common Stock and shares of Series F Preferred Stock so issued shall be issued in full 9 satisfaction of all obligations of the Company to Greenlight Capital, Greenlight Qualified and Greenlight Offshore under the LLC Agreement, the Bond Purchase Agreement and the Side Letter. 8.7 Amendment to Warrant Agreement. The Company and Greenlight shall execute Amendment No. 2 to the Warrant Agreement dated as of June 19, 2001, as amended between the Company and The Bank of New York, as successor in interest to the corporate trust business of United States Trust Company of New York, as warrant agent in substantially the form attached hereto as Schedule 8.7 (the "Warrant Agreement Amendment"). 8.8 Fees and Expenses. Subject to Section 14, each party shall bear its own expenses incurred in connection with the negotiation and preparation of this Agreement and in connection with all obligations required to be performed by it under this Agreement. 8.9 Further Assurances. At any time and from time to time after the Closing, each of the parties shall, without further consideration, execute and deliver or cause to be executed and delivered to the other parties such additional instruments, and shall take such other action as the other parties may request to carry out the transactions contemplated by this Agreement. 8.10 Withdrawal of Board Recommendation. The Company Board shall not (i) withdraw or modify or propose to withdraw or modify, the approval or recommendation of the Company Board of this Agreement, or (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal (as hereinafter defined) provided that, the Company Board may withdraw or modify or propose to withdraw or modify its recommendation of this Agreement or recommend or propose to recommend an Acquisition Proposal if, in each case, the Company Board determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal is a Superior Proposal (as hereinafter defined) and determines in good faith, based upon advice of its outside legal counsel, that it would be inconsistent not to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company shall provide reasonable notice to the Equity Holders to the effect that it is taking such action. For purposes of this Agreement, "Acquisition Proposal" shall mean any offer or proposal, whether in writing or otherwise, made by a third party to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or a material portion of the assets of, or any material equity interest in, the Company or its material subsidiaries pursuant to a merger, consolidation or other business combination, recapitalization, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction involving the Company (other than the transactions contemplated by this Agreement). The term "Superior Proposal" means any proposal to acquire, directly or indirectly, for consideration consisting of cash or securities, more than a majority of each class of capital stock then outstanding or all or substantially all of the assets of the Company, and otherwise on terms which the Company Board determines in good faith to be more favorable to the Company and its stockholders than the Equity Restructuring contemplated by this Agreement, for which financing, to the extent required, is then committed. 10 8.11 "Short Form" Merger. Greenlight shall not effect a merger of the Company with any other entity pursuant to Section 253 of the Delaware Law. 9. Conditions to Closing. 9.1 Conditions to the Obligation of each Equity Holder. Each Equity Holder's obligation to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by such Equity Holder): (a) all representations and warranties of the Company under this Agreement shall be true and correct (i) at and as of the time given (or with respect to any representation and warranty, which speaks as of a specific date, as of such date) and (ii) at and as of the time of the Closing with the same effect as if the representations and warranties had been made again at and as of that time; (b) the Company shall have performed and complied in all material respects with all obligations, covenants and conditions required by this Agreement to be performed or complied with by the Company prior to or at the Closing; (c) the Refinancing shall have been consummated on substantially the terms set forth in the preliminary offering circular dated June 26, 2003; (d) the Company shall have entered into a new senior revolving credit facility on substantially the terms set forth in the preliminary offering circular dated June 26, 2003; (e) Jefferies shall have purchased all of the EnbcDeb Corp. Notes; (f) Greenlight shall have purchased all of the Series F Preferred Stock held by Jefferies; (g) the Company Stockholders' Action shall have been approved and adopted by the Company's stockholders at the Company Stockholders' Meeting in accordance with Delaware Law and the Company's certificate of incorporation; 11 (h) the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware and the Certificate of Designation shall have been accepted and certified by the Secretary of State of the State of Delaware; (i) the Company shall have filed an amendment to its certificate of incorporation in a form reasonably acceptable to the parties with the Secretary of State of the State of Delaware and such amendment shall have been accepted and certified by the Secretary of State of the State of Delaware; (j) in the case of Greenlight, the Company and such Equity Holder shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Schedule 9.1(j); (k) there shall not be any material litigation pending which seeks to enjoin the consummation of the Refinancing, the purchase of the EnbcDeb Corp. Notes, the issuance of the Series F Preferred Stock to Jefferies contemplated by the Note Purchase Agreement, Greenlight's purchase of Jefferies' shares of Series F Preferred Stock and the transactions contemplated by this Agreement; (l) such Equity Holder shall have been furnished with each of the items to be delivered in accordance with Section 10.1; (m) the Company shall have executed and delivered the Warrant Agreement Amendment; (n) the Stockholders Agreement shall have been terminated; (o) Farallon Capital Partners, L.P., Farallon Capital Institutional Partners, L.P., Farallon Capital Institutional Partners II, L.P., Farallon Capital Institutional Partners III, L.P., Tinicum Partners, L.P. and Farallon Capital Offshore Investors, Inc. (collectively, "Farallon") shall have consummated the transactions contemplated by the Agreement of even date herewith between Farallon and the Company; (p) Halpern Denny shall have received the opinion of Proskauer Rose LLP, counsel to the Company in form and substance reasonably acceptable to Halpern Denny; and 12 (q) Greenlight shall have received the opinion of Proskauer Rose LLP, counsel to the Company in form and substance reasonably acceptable to Greenlight. 9.2 Conditions to the Obligations of the Company. The obligation of the Company to consummate the transactions under this Agreement is subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by the Company): (a) all representations and warranties of each of the Equity Holders contained in this Agreement shall be true in all material respects at and as of the time of the Closing with the same effect as if the representations and warranties had been made again at and as of that time; (b) each Equity Holder shall have performed and complied in all material respects with all obligations, covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing; (c) there shall not be any material litigation pending which seeks to enjoin the consummation of the transactions contemplated by this Agreement; (d) Greenlight shall have executed and delivered the Registration Rights Agreement; (e) Greenlight shall have executed and delivered the Warrant Agreement Amendment; and (f) the Company shall have been furnished with each of the other items to be delivered in accordance with Section 10.2. 10. Transactions at the Closing. 10.1 Items to Be Delivered by the Company. At the Closing, the Company shall deliver the following: (a) to Greenlight: (i) certificates representing the shares of Common Stock to be issued to Greenlight, (ii) the general release in substantially the form of Schedule 10.1(a) 13 and (iii) such other certificates, instruments and documents as Greenlight may reasonably request; and (b) to Halpern Denny: (i) certificates representing the shares of Series Z Preferred Stock to be issued to Halpern Denny, (ii) the general release in substantially the form of Schedule 10.1(a), including, without limitation, a general release for any of Halpern Denny's former designees to the Company Board or any of the boards of directors of the Company's subsidiaries and (iii) such other certificates, instruments and documents as Halpern Denny may reasonably request. 10.2 Items to Be Delivered by each Equity Holder. (a) At the Closing, Greenlight shall deliver to the Company or Halpern Denny, as applicable the following: (i) stock certificates representing all of the shares of Series F Preferred Stock owned by Greenlight, together with duly executed stock powers; (ii) a general release in favor of the Company in substantially the form of Schedule 10.1(a); (iii) a general release in favor of Halpern Denny in substantially the form of Schedule 10.1(a); and (iv) such other certificates, instruments and documents as the Company may reasonably request. (b) At the Closing, Halpern Denny shall deliver to the Company or Greenlight, as applicable the following: (i) stock certificates representing all of the shares of Series F Preferred Stock owned by Halpern Denny, together with duly executed stock powers; (ii) stock certificates representing all shares of Common Stock owned by Halpern Denny, together with duly executed stock powers; (iii) all of the warrants held by Halpern Denny, duly endorsed for transfer; (iv) a general release in favor of the Company in substantially the form of Schedule 10.1(a); (v) a general release in favor of Greenlight in substantially the form of Schedule 10.1(a); and (vi) such other certificates, instruments and documents as the Company may reasonably request. 11. Termination. 11.1 Termination. This Agreement may be terminated: (a) by written agreement of the parties; (b) by any of the parties if the Equity Restructuring shall not have occurred by September 30, 2003; or 14 (c) by any of the parties if the Company Board shall have withdrawn its recommendation set forth in Section 5.2(b) as to the advisability of the circumstances contemplated by this Agreement. 11.2 Liability. The termination of this Agreement under Section 11.1 shall not relieve any party of any liability for breach of this Agreement prior to the date of termination. 12. Continuing Director and Officer Indemnification. (a) From and after the Closing, the Company shall fulfill and honor the obligations of the Company pursuant to the indemnification and advancement provisions in the Company's certificate of incorporation and by-laws existing as in effect on the date of this Agreement with respect to the Company's directors and officers, including former directors and officers, for a period of six years. (b) For a period of six years after the Closing, the Company shall use its commercially reasonable efforts to maintain in effect, a directors and officers liability insurance policy covering those persons who are covered by the Company's directors and officers liability insurance policy as of the date of this Agreement, which policy provides coverage for such individuals on at least as favorable terms as the policy or policies from time to time in effect for the Company's then existing directors and officers. (c) The provisions of this Section 12 are intended to be for the benefit of any designee of any Equity Holder who has served as a director of the Company. 13. Miscellaneous. 13.1 Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally, one business day after being sent by a major overnight courier, or four days after being mailed by registered mail, return receipt requested, to the parties at the addresses set forth below (or at such other address as a party may specify by notice to the other): (a) If to the Company: New World Restaurant Group, Inc. 1687 Cole Boulevard Golden, CO 80401 Facsimile: (303) 568-8039 Attention: Anthony D. Wedo 15 (b) if to Greenlight: c/o Greenlight Capital, Inc. 420 Lexington Avenue, Suite 1740 New York, New York 10017 Facsimile: (212) 973-1900 Attention: David Einhorn (c) if to Halpern Denny: Halpern Denny Fund III, L.P. 500 Boylston Street Suite 1880 Boston, MA 02116 Facsimile: (617) 536-8535 Attention: William J. Nimmo 13.2 Entire Agreement. This Agreement, including the schedules, contains a complete statement of all the arrangements among the parties with respect to its subject matter, supersedes any previous agreements among them relating to that subject matter and cannot be changed or terminated orally. Except as specifically set forth in this Agreement, there are no representations or warranties by any party in connection with the transactions contemplated by this Agreement. 13.3 Headings. The section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement. 13.4 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made and to be performed in New York without giving effect to choice of law or conflicts of law principles. 13.5 Separability. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect. 13.6 Waiver. Any party may waive compliance by any other party with any provision of this Agreement. No waiver of any provision shall be construed as a waiver of any other provision. Any waiver must be in writing. No failure or delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of the right, power or 16 privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. 13.7 Assignment. No party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other parties. 13.8 Jurisdiction. The courts of the State of New York in New York county and the United States District Court for the Southern District of New York shall have exclusive jurisdiction over the parties with respect to any dispute or controversy among them arising under or in connection with this Agreement and, by execution and delivery of this Agreement, each of the parties to this Agreement submits to the jurisdiction of those courts, waives any objection to such jurisdiction on the grounds of venue or forum non conveniens, the absence of any personal or subject matter jurisdiction and any similar grounds, consents to service of process by mail (in accordance with Section 13.1) or any other manner permitted by law, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. These consents to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement. 13.9 No Third Party Beneficiaries This Agreement does not create, and shall not be construed as creating, any rights in favor of any person not a party to this Agreement. 13.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original and all of which shall be considered a single instrument. 14. Fees and Expenses. 14.1 Greenlight Fees and Expenses. The Company shall pay any and all legal fees and expenses of counsel to Greenlight, which fees and expenses relate to services rendered in connection with Greenlight's investment in the Company, including, without limitation, the transactions contemplated by this Agreement, provided, however, that such fees and expenses shall not exceed $500,000. 14.2 Halpern Denny Fees and Expenses. The Company shall pay any and all legal fees and expenses of Ropes & Gray LLP (or its predecessor), counsel to Halpern Denny, which fees and expenses relate to services rendered since May 1, 2003 in connection with Halpern Denny's investment in the Company, including, without limitation, the transactions contemplated by this Agreement, provided, however, that such fees and expenses shall not exceed $125,000. 17 [Remainder of this page intentionally left blank] 18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers or authorized representatives as of the date first written above. NEW WORLD RESTAURANT GROUP, INC. By: ------------------------------------- Name: Title: BROOKWOOD NEW WORLD INVESTORS, L.L.C. By: ------------------------------------- Name: Title: NWCI Holding, LLC By: ------------------------------------- Name: Title: GREENLIGHT CAPITAL, L.P. By: GREENLIGHT CAPITAL, L.L.C., its general partner By: ----------------------------------- Name: Title: GREENLIGHT CAPITAL QUALIFIED, L.P. By: GREENLIGHT CAPITAL, L.L.C., its general partner By: ------------------------------------- Name: Title: GREENLIGHT CAPITAL OFFSHORE, LTD. By: GREENLIGHT CAPITAL, INC., its investment advisor By: ------------------------------------- Name: Title: HALPERN DENNY FUND III, L.P. By: ------------------------------------- Name: Title: EX-99.2 4 d07468aexv99w2.txt NOTE PURCHASE AND PUT AGREEMENT EXHIBIT 99.2 NOTE PURCHASE AND PUT AGREEMENT (this "Agreement"), dated as of June 27, 2003, among JEFFERIES & COMPANY, INC. (the "Initial Purchaser") and the purchasers set forth on Annex A hereto (each, a "Purchaser" and collectively, the "Purchasers"). RECITALS A. New World Restaurant Group, Inc. (the "Company") has entered into a Purchase Agreement (the "Purchase Agreement"), dated as of the date hereof, with the Initial Purchaser, pursuant to which the Company has agreed to issue and sell $160,000,000 aggregate principal amount of 13% Senior Secured Notes due 2008 (the "Notes") of the Company. B. Immediately following the purchase of the Notes by the Initial Purchaser pursuant to the Purchase Agreement, the Purchasers have agreed, severally, and not jointly and severally, to purchase $70,000,000 aggregate principal amount of the Notes from the Initial Purchaser at a price equal to 97% of the principal amount of the Notes, on the terms and subject to the conditions of this Agreement. C. In addition, the Purchasers have granted to the Initial Purchaser an option to put to the Purchasers, severally, and not jointly and severally, up to an additional $30,000,000 aggregate principal amount of the Notes at a price equal to 95% of the principal amount of the Notes, on the terms and subject to the conditions of this Agreement D. The parties hereto now wish to enter into this Agreement to provide for the Purchasers' commitment to purchase up to $100,000,000 aggregate principal amount of the Notes, on the terms and conditions set forth herein. AGREEMENT In consideration of the premises and the mutual covenants and the agreements herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: Section 1. Definitions. As used in this Agreement, the following terms have the meanings stated: "Affiliate" of a Person means any other Person that directly or indirectly controls, is controlled by or is under common control with, the Person or any of its Subsidiaries. "Dollars" and "$"refer to United States dollars and other lawful currency of the United States of America from time to time in effect. "Person" means any individual, corporation, partnership, limited liability company, association, joint venture, trust or any other entity or organization. "Purchaser Percentage" means, for each Purchaser, the percentage set forth opposite such Purchaser's name under the heading "Purchaser Percentage" on Annex A. "Securities Act" means the Securities Act of 1933, as amended, and the related regulations and published interpretations. Section 2. Agreement to Purchase Notes. Upon the terms and subject to the conditions set forth in this Agreement, each Purchaser, severally, and not jointly and severally, hereby agrees to purchase from the initial Purchaser, and the Initial Purchaser hereby agrees to sell, transfer, assign, convey and deliver to each Purchaser, on the Closing Date (as defined in the Purchase Agreement), Notes having an aggregate original principal amount equal to the principal amount set forth opposite such Purchaser's name on Annex A hereto (such Notes being the "Purchased Notes"), for an amount in cash equal to the product of (a) 0.97, multiplied by (b) the aggregate principal amount of Purchased Notes to be purchased by such Purchaser, in each case, by wire transfer of immediately available funds in accordance with the wire transfer instructions attached hereto on Annex B; provided, however, that in the event that the Closing Date shall not occur on or prior to the date which is three months after the date of this Agreement (the "Termination Date"), none of the Purchasers shall be obligated to purchase any Notes hereunder after the Termination Date. Section 3. Put Option. (a) Grant of Option. Upon the terms and subject to the conditions set forth in this Agreement, each Purchaser, severally, and not jointly and severally, hereby grants to the Initial Purchaser the right and option (the "Put Option") to sell to such Purchaser, on the Closing Date, Notes (the "Additional Notes") in an aggregate principal amount not to exceed the product of (i) the aggregate principal amount of Notes that the Initial Purchaser is unable to sell to third parties up to a maximum of $30,000,000, multiplied by (ii) Purchaser Percentage for such Purchaser, for an amount in cash equal to the product of (i) 0.95, multiplied by (ii) the aggregate principal amount of Additional Notes to be purchased by such Purchaser, in each case, by wire transfer of immediately available funds in accordance with the wire transfer instructions attached hereto on Annex B. (b) Exercise of Put Option. The Put Option shall be exercisable during the period from the date of this Agreement through the Termination Date. In order to exercise the Put Option, the Initial Purchaser shall deliver to each Purchaser a written notice on or prior to the Closing Date setting forth the aggregate principal amount of Additional Notes to be purchased by each Purchaser. Section 4. Time and Place of the Closing. The closing of the sale, transfer, assignment, conveyance and delivery of the Purchased Notes and the Additional Notes (the "Closing"),will take place at the offices of Mayer, Brown, Rowe & Maw, on the Closing Date immediately following the consummation of the transactions described in the Purchase Agreement. Section 5. Conditions Precedent to the Obligations of the Purchasers. The obligations of the Purchasers under this Agreement are expressly subject to the fulfillment of each of the following conditions, unless expressly waived by the Purchasers in writing, at or before the Closing. (a) Representations and Warranties; Covenants. The representations and 2 warranties of the Initial Purchaser set forth in this Agreement shall be true in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. The Initial Purchaser shall have performed and complied in all material respects with all of its covenants and other obligations contained in this Agreement required to be performed or complied with by the Initial Purchaser at or before the Closing. (b) Purchase Agreement. The representations and warranties of the Company set forth in the Purchase Agreement shall be trite in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. The Company shall have performed and complied in all material respects with all of its covenants and other obligations contained in the Purchase Agreement required to be performed or complied with by the Company at or before the closing under the Purchase Agreement. All of the conditions set forth in Section 7 of the Purchase Agreement shall have been satisfied (and not waived). (c) Purchase of Notes. The Initial Purchaser shall have purchased Notes having an aggregate principal amount equal to $l60,000,000 from the Company pursuant to the Purchase Agreement. (d) Purchased Notes and Additional Notes. The Purchasers shall have received the purchased Notes and the Additional Notes. (e) Documents. The final Indenture and the final Intercreditor Agreement (as defined in the Indenture) shall conform in all material respects to the draft Indenture and the draft Intercreditor Agreement delivered to the Purchasers on the date of this Agreement. (f) Material Adverse Effect. Since the date of this Agreement through the date of the Closing hereunder, no event or circumstance shall have occurred, which has had, or could reasonably be expected to have, a Material Adverse Effect (as defined in the Purchase Agreement). Section 6. Conditions Precedent to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser under this Agreement are expressly subject to the fulfillment of each of the following conditions, unless waived by the Initial Purchaser in writing, at or before the Closing. (a) Representations and Warranties; Covenants. The representations and warranties of the Purchasers set forth in this Agreement shall be true in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. The Purchasers shall have performed and complied in all material respects with all of their covenants and other obligations contained in this Agreement required to be performed or complied with by the Purchasers at or before the Closing. (b) Purchase of Notes. The Company shall have issued to the Initial Purchaser 3 Notes having an aggregate principal amount equal to $160,000,000 pursuant to the Purchase Agreement. (c) Purchase Price. The Initial Purchaser shall have received the aggregate purchase price for the Purchased Notes and the Additional Notes by wire transfer of immediately available funds in accordance with the provisions of Sections 2 and 3 hereof. Section 7. Representations and Warranties of the Initial Purchaser. The Initial Purchaser hereby represents and warrants to the Purchasers as of the date hereof and as of the Closing Date as follows: (a) Existence and Power. The Initial Purchaser (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) has all necessary corporate power and authority required to execute and deliver this Agreement and to consummate the transactions described in this Agreement. (b) Authorization Binding Effect. The execution and delivery by the Initial Purchaser of this Agreement, the performance by the Initial Purchaser of its obligations under this Agreement and the consummation of the transactions described in this Agreement by the Initial Purchaser has been duly authorized by all necessary corporate action on the part of the Initial Purchaser. This Agreement is the legal, valid and binding obligation of the Initial Purchaser enforceable against the Initial Purchaser in accordance with its terms, except that such enforcement (i) may be limited by bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally and (ii) is subject to the availability of equitable remedies, as determined in the discretion of the court before which such a proceeding may be brought. (c) Contravention. Neither the execution, delivery and performance of this Agreement by the Initial Purchaser nor the consummation of the transactions described in this Agreement by the Initial Purchaser will (with or without notice or lapse of time or both) (i) violate or breach any provision of the Initial Purchaser's organizational or governing documents, (ii) violate or breach any statute, law, regulation, rule or order by which the Initial Purchaser or any of its material assets or properties maybe bound or affected, or (iii) breach or result in a default under any material contract or agreement to which the Initial Purchaser is a party or by which the Initial Purchaser or any of its material assets or properties may be bound or affected. (d) Consents. No approval, consent, authorization or order of, notice to or registration or filing with, or any other action by, any governmental authority or other person or entity are required in connection with (i) the due execution and delivery by the Initial Purchaser of this Agreement and the performance of the Initial Purchaser's obligations hereunder, and (ii) the consummation of the transactions described in this Agreement. (e) Litigation. There is no action, arbitration, lawsuit or proceeding against the Initial Purchaser that involves any of the transactions described in this Agreement and the Purchase Agreement. 4 (f) The Purchased Notes and Additional Notes. Upon delivery to the Purchasers at the Closing of the Purchased Notes and the Additional Notes, and upon the Initial Purchaser's receipt of the purchase price for the Purchased Notes and the Additional Notes as provided in Sections 2 and 3 hereof, the Purchasers will become the sole record and legal owners of the Purchased Notes and the Additional Notes and good and marketable title to such Purchased Notes and Additional Notes will pass to the Purchasers, free and clear of any liens, claims, encumbrances, security interests, charges, options and transfer restrictions of any kind created by or through the Initial Purchaser. (g) Securities Laws. The Initial Purchaser has not offered to sell any portion of the Purchased Notes or the Additional Notes or any interest therein in a manner which violates any applicable securities law or would require the issuance and sale hereunder to be registered under the Securities Act. Section 8. Representations and Warranties of the Purchasers. Each Purchaser, severally, and not jointly and severally, with respect to itself only, hereby represents and warrants to the Initial Purchaser as of the date of this Agreement and as of the Closing Date as follows: (a) Existence and Power. Such Purchaser (i) is a limited partnership or limited liability company, as the case may be, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (ii) has all necessary partnership or limited liability company power and authority, as the case may be, to execute and deliver this Agreement and to consummate the transactions described in this Agreement. (b) Authorization Binding Effect. The execution and delivery by such Purchaser of this Agreement, the performance by such Purchaser of its obligations under this Agreement and the consummation of the transactions described in this Agreement by such Purchaser has been duly authorized by all necessary partnership or limited liability company action, as the case may be, on the part of such Purchaser. This Agreement is the legal, valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms, except that such enforcement (i) may be limited by bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally and (ii) is subject to the availability of equitable remedies, as determined in the discretion of the court before which such a proceeding may be brought. (c) Contravention. Neither the execution, delivery and performance of this Agreement by such Purchaser nor the consummation of the transactions described in this Agreement by such Purchaser will (with or without notice or lapse of time or both) (i) violate or breach any provision of such Purchaser's organizational or governing documents, (ii) violate or breach any statute, law, regulation, rule or order by which such Purchaser or any of its material assets or properties may be bound or affected, or (iii) breach or result in a default under, any material contract or agreement to which such Purchaser is a party or by which such Purchaser or any of its material assets or properties may be bound or affected. 5 (d) Consents. No approval, consent, authorization or order of, notice to or registration or filing with, or any other action by, any governmental authority or other person or entity are required in connection with (i) the due execution and delivery by such Purchaser of this Agreement and the performance of such Purchaser's obligations hereunder, and (ii) the consummation of the transactions described in this Agreement. (e) Litigation. There is no action, lawsuit or proceeding against such Purchaser that involves any of the transactions described in this Agreement. Section 9. Miscellaneous. (a) Notices. All notices, requests, demands and other communications to any party or given under this Agreement will be in writing and delivered personally, by overnight delivery or courier, by registered mail or by telecopier (with confirmation received) to the parties at the address or telecopy number specified for such parties on the signature pages hereto (or at such other address or telecopy number as may be specified by a party in writing given at least five business days prior thereto). All notices, requests, demands and other communications will be deemed delivered when actually received. (b) Counterparts. This Agreement may be executed simultaneously in one or more counterparts, and by different parties hereto in separate counterparts, each of which when executed will be deemed an original, but all of which taken together will constitute one and the same instrument. (c) Amendment of Agreement. This Agreement may not be amended, modified or waived except by an instrument in writing signed on behalf of each of the parties hereto. (d) Successors and Assigns; Assignability. This Agreement will be binding upon and inures to the benefit of and is enforceable by the respective successors and permitted assigns of the parties hereto. This Agreement may not be assigned by any party hereto without the prior written consent of all other parties hereto. Any assignment or attempted assignment in contravention of this Section will be void ab initio and will not relieve the assigning party of any obligation under this Agreement. (e) Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the state of New York applicable to contracts executed in and to be performed entirely within that state, without reference to conflicts of laws provisions. (f) Integration. This Agreement contains and constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements and understandings, whether written or oral, of the parties hereto. (g) Severability. if any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect. 6 (h) No Third-Party Rights. This Agreement is not intended, and will not be construed, to create any rights in any parties other than the Initial Purchaser and the Purchasers and no person or entity may assert any rights as third-party beneficiary hereunder. (i) Waiver of Jury Trial. EACH OF THE INITIAL PURCHASER AND THE PURCHASERS HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LAWSUIT, ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE DELIVERED IN CONNECTION WITH THIS AGREEMENT AND AGREES THAT ANY LAWSUIT, ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. (j) No Waiver; Remedies. No failure or delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of the right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement will be cumulative and not exclusive of any rights or remedies provided by law. (k) Several Obligations. Notwithstanding anything contained in this Agreement to the contrary, the parties agree that all obligations and liabilities of any Purchaser under this Agreement are enforceable solely against such Purchaser and the obligations and liabilities of the Purchasers under this Agreement are several and not joint and several and each Purchaser is only liable for such Purchaser's Percentage of any liability or obligation under this Agreement. (l) Further Assurances. Promptly upon the reasonable request by any Purchaser, the Initial Purchaser shall (i) correct any defect or error that may be discovered in this Agreement or in the execution or delivery of this Agreement, (ii) execute, acknowledge, deliver, record, file and register, any and all such further acts, conveyances, assignments, notices of assignment, transfers, certificates, assurances, endorsements and other instruments, and (iii) take all such action, in each case, as such requesting party may require from time to time. 7 In witness whereof, the parties have executed and delivered this Agreement as of the date first written above. INITIAL PURCHASER: JEFFERIES & COMPANY, INC. Address for Notices: 51 JFK Parkway, 3rd Floor Short Hills, New Jersey 07078 Attention: Eric R. Macy By: Facsimile No.: 973-912-2790 -------------------------------- Name: Title: with a copy to: Mayer, Brown, Rowe & Maw 1675 Broadway New York, New York 10019 Attention: Ronald S. Brody, Esq. Facsimile No.: ------------------- 8 PURCHASERS: FARALLON CAPITAL PARTNERS, L.P. Address for Notices: FARALLON CAPITAL INSTITUTIONAL c/o Farallon Capital Management, L.L.C. PARTNERS, L.P. One Maritime Plaza, Suite 1325 FARALLON CAPITAL INSTITUTIONAL San Francisco, California 94111 PARTNERS II, L.P. Attention: Derek Schrier FARALLON CAPITAL INSTITUTIONAL Facsimile No.: 415-421-2133 PARTNERS III, L.P. TINICUM PARTNERS, L.P. with a copy to: By: Farallon Partners, L.L.C., Richards Spears Kibbe & Orbe LLP their General Partner One World Financial Center 29th Floor New York, New York 10281 Attention: Andrew M. Weinfeld Facsimile No.: 212-530-1801 By: ----------------------------------- Name: Title: FARALLON CAPITAL OFFSHORE Address for Notices: INVESTORS, INC. - ------------------- c/o Farallon Capital Management, L.L.C. One Maritime Plaza, Suite 1325 By: Farallon Capital Management, L.L.C., San Francisco, California 94111 its Agent and Attorney-in-Fact Attention: Derek Schrier Facsimile No.: 415-421-2133 with a copy to: By: Richards Spears Kibbe & Orbe LLP ----------------------------------- One World Financial Center Name: Title: 29th Floor Title New York, New York 10281 Attention: Andrew M. Weinfeld Facsimile No.: 212-530-1801
9 Address for Notices: GREENLIGHT CAPITAL, L.P. c/o Greenlight Capital, Inc. 420 Lexington Ave., Suite 1740 By: Greenlight Capital, L.L.C., New York, New York 10170-0899 its general partner Attention.: David Einhorzi Facsimile No.: 212-973-1900 By: ---------------------------------- Name: Title: Address for Notices: GREENLIGHT CAPITAL c/o Greenlight Capital, Inc. QUALIFIED, L.P. 420 Lexington. Ave., Suite 1740 New York, New York 10170-0899 Attention: David Einhorn By: Greenlight Capital, L.L.C., Facsimile No.: 212-973-1900 its general partner By: ---------------------------------- Name: Title: Address for Notices: GREENLIGHT CAPITAL c/o Greenlight Capital, Inc. OFFSHORE, LTD. 420 Lexington Ave., Suite 1740 New York, New York 10170-0899 Attention: David Einhmil By: Greenlight Capital, Inc., Facsimile No.: 212-973-1900 its investment advisor By: ---------------------------------- Name: Title:
10 ANNEX A to NOTE PURCHASE AND PUT AGREEMENT Purchasers
Aggregate Principal Amount of Purchased Purchaser Purchaser Notes to be Purchased Percentage --------- --------------------- ---------- Farallon Capital Partners, L.P. $ 7,480,000 10.686% Farallon Capital Institutional Partners, L.P. $ 6,680,000 9.543% Farallon Capital Institutional Partners II, L.P. $ 800,000 1.143% Farallon Capital Institutional Partners III, L.P. $ 980,000 1.400% Tinicum Partners, L-P. $ 355,000 0.507% Farallon Capital Offshore Investors, Inc- $ 18,705,000 26.721% Greenlight Capital, L.P. $ 4,511,500 6.445% Greenlight Capital Qualified, L.P. $ 13,608,000 19.440% Greenlight Capital Offshore. Ltd. $ 16,880,500 24.15% ------------- ------ Totals $ 70,000,000 100.000%
EX-99.3 5 d07468aexv99w3.txt AMENDMENT TO NOTE PURCHASE AND SECURITY AGREEMENT EXHIBIT 99.3 AMENDMENT TO NOTE PURCHASE AND SECURITY AGREEMENT Amendment dated July 8, 2003 (the "Amendment"), among New World EnbcDeb Corp. (the "Company"), New World Restaurant Group, Inc. (the "Preferred Issuer"), Greenlight Capital, L.P., Greenlight Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd. (collectively, the "New Purchaser") and Jefferies & Company, Inc., as purchaser (the "Purchaser") and as collateral agent (in such capacity, the "Collateral Agent') for the holders of the Notes, to the Note Purchase and Security Agreement dated as of June 19, 2001 (the "Agreement") among the Company, the Preferred Issuer, the Purchaser and the Collateral Agent. Capitalized terms used herein without definition have the meanings assigned to them in the Agreement. WHEREAS, pursuant to Section 6.11 of the Agreement, the Preferred Issuer has agreed to issue to the Holders Preferred Stock at the option of each Holder; WHEREAS, the Preferred Stock is to have the terms set forth in Exhibit B to the Agreement; WHEREAS, the Purchaser held $4,337,480.64 principal amount of the Notes as of June27, 2003; and WHEREAS, effective July 8, 2003, the New Purchaser purchased 100% of the outstanding principal amount of the Notes from the Purchaser; and WHEREAS, the New Purchaser and the Preferred Issuer, subject to the refinancing of the Preferred Issuer's Senior Secured Increasing Rate Notes due 2003, wish to fix the terms of the Preferred Stock and the parties wish to enter into certain other agreements; NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth, the Company, the Preferred Issuer, the New Purchaser, the Purchaser and the Collateral Agent hereby agree as follows: 1. Representation and Warranties of Purchaser. Purchaser represents and warrants that Purchaser held $4,337,480.64 principal amount of the Notes as of June27, 2003. Purchaser further represents and warrants that effective July 8, 2003 it sold $4,337,480.64 principal amount of such Notes to New Purchaser. The representations in this Section 1 by Purchaser are based upon the reliability and accuracy of the Company's representation in Section 3. 2. Representations and Warranties of New Purchaser. New Purchaser represents and warrants that as of the date hereof it owns $4,337,480.64 principal amount of the Notes. The representation in this Section 2 by New Purchaser is based upon the reliability and accuracy of the Company's representation in Section 3. 3. Representations and Warranties of the Company. The Company represents and warrants that, as of the date hereof, there is $4,337,480.64 aggregate principal amount of the Notes. 4. Conditions to Effectiveness. The effectiveness of this Amendment is conditioned upon consummation by the Preferred Issuer on or prior to July 15, 2003 of a refinancing of its existing Senior Secured Increasing Rate Notes due 2003 pursuant to a Rule 144A offering of $160,000,000 principal amount of Senior Secured Notes for which Purchaser has acted as sole placement agent substantially on the terms set forth in Preferred Issuer's Offering Circular dated June 27, 2003 (the "Refinancing"). 5. Prior Amendments. This Amendment will supercede in its entirety Amendment No. 1 to the Note Purchase and Security Agreement dated January 30, 2001, the Amendment to the Note Purchase and Security Agreement dated May 16, 2003 and the Amendment to the Note Purchase and Security Agreement dated June 26, 2003. 6. Terms of Preferred Stock. Anything contained in the Agreement to the contrary notwithstanding, in the event the Preferred Issuer consummates the Refinancing, the Preferred Issuer shall, upon and contemporaneously with the consummation of such Refinancing, issue an aggregate of 4,337.481 authorized but unissued shares of its Series F Preferred Stock to the New Purchaser in full satisfaction of the Preferred Issuer's obligations under Section 6.11 of the Agreement. The shares of Series F Preferred Stock shall be allocated among Greenlight Capital, L.P., Greenlight Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd. based upon the percentages set forth in Exhibit A and the portion of the consideration payable by Greenlight Capital, L.P., Greenlight Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd. shall based upon the percentages set forth in Exhibit A. 7. Warrants. Anything contained in Exhibit B to the Agreement to the contrary notwithstanding, the Preferred Issuer shall have no obligation to issue any warrants to the Holders or the New Purchaser. 8. Full Satisfaction. Upon the issuance to the New Purchaser of the Series F Preferred Stock contemplated by Section 6 of this Amendment, neither the Company nor the Preferred Issuer shall have any further obligations to the Holders under or by virtue of the Agreement or the Notes or the Consulting Engagement Letter. 9. Effect on Agreement. Except as amended hereby, the provisions of the Agreement shall remain in full force and effect. Except as expressly stated herein, the execution of this Amendment shall be without prejudice to, and with full reservation of, any rights any party hereto may otherwise have. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written. NEW WORLD ENBCDEB CORP. By:_______________________________ NEW WORLD RESTAURANT GROUP, INC. By: ------------------------------------- JEFFERIES & COMPANY, INC. As Purchaser and as Collateral Agent By: ------------------------------------- GREENLIGHT CAPITAL, L.P. By: ------------------------------------- GREENLIGHT CAPITAL QUALIFIED, L.P. By: ------------------------------------- GREENLIGHT CAPITAL OFFSHORE, LTD. By: ------------------------------------- Exhibit A Allocation
ENTITY PERCENTAGE - ------ ---------- Greenlight Capital, L.P. 9.54% Greenlight Capital Qualified, L.P. 36.41% Greenlight Capital Offshore, Ltd. 54.05% ------ Total 100.00%
EX-99.9 6 d07468aexv99w9.txt JOINT FILING AGREEMENT EXHIBIT 99.9 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, par value $0.001 per share, of New World Coffee - Manhattan Bagel, Inc., and further agree that this Joint Filing Agreement shall be included as an Exhibit to such joint filings. The undersigned further agree that each party hereto is responsible for the timely filing of such Statement on Schedule 13G and any amendments thereto, and for the accuracy and completeness of the information concerning such party contained therein; provided, however, that no party is responsible for the accuracy or completeness of the information concerning any other party, unless such party knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be signed in counterparts with the same effect as if the signature on each counterpart were upon the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 20, 2003. GREENLIGHT CAPITAL, L.L.C. By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL, L.P. By: Greenlight Capital, L.L.C., its general partner By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL QUALIFIED, L.P. By: Greenlight Capital, L.L.C., its general partner By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, Managing Member GREENLIGHT CAPITAL OFFSHORE, LTD. By: Greenlight Capital, Inc., its investment advisor By: /s/ DAVID EINHORN ------------------------------------- David Einhorn, President /s/ DAVID EINHORN ----------------------------------------- David Einhorn -----END PRIVACY-ENHANCED MESSAGE-----