0001011438-01-500238.txt : 20011030
0001011438-01-500238.hdr.sgml : 20011030
ACCESSION NUMBER: 0001011438-01-500238
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20011026
GROUP MEMBERS: AIM CAPITAL, LLC
GROUP MEMBERS: ANDREW A. WIEDERHORN
GROUP MEMBERS: JOYCE MENDELSOHN
GROUP MEMBERS: LAWRENCE A. MENDELSOHN
GROUP MEMBERS: MFLP, L.P.
GROUP MEMBERS: RPM CAPITAL, LLC
GROUP MEMBERS: S&SINVESTORS, LLC
GROUP MEMBERS: TIFFANY WIEDERHORN
GROUP MEMBERS: TTMM, L.P.
GROUP MEMBERS: WM STARLIGHT INVESTMENTS LLC
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: WIEDERHORN ANDREW
CENTRAL INDEX KEY: 0001033016
STANDARD INDUSTRIAL CLASSIFICATION: []
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: C/O WILSHIRE FINANCIAL SERVICES GROUP
STREET 2: 1776 SW MADISON STREET
CITY: PORTLAND
STATE: OR
ZIP: 97205
BUSINESS PHONE: 5032235600
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: FOG CUTTER CAPITAL GROUP INC
CENTRAL INDEX KEY: 0001048566
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 522081138
STATE OF INCORPORATION: MD
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-54067
FILM NUMBER: 1767721
BUSINESS ADDRESS:
STREET 1: 1631 SW COLUMBIA STREET
CITY: PORTLAND
STATE: OR
ZIP: 97201
BUSINESS PHONE: 5037216500
MAIL ADDRESS:
STREET 1: 1310 S W 17TH ST
CITY: PORTLAND
STATE: OR
ZIP: 97201
FORMER COMPANY:
FORMER CONFORMED NAME: WILSHIRE REAL ESTATE INVESTMENT TRUST INC
DATE OF NAME CHANGE: 19971027
SC 13D
1
sch13d.txt
SCHEDULE 13D
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
SCHEDULE 13D
(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)
FOG CUTTER CAPITAL GROUP INC.
-------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.0001 per share
-------------------------------------------------------------------------------
(Title of Class of Securities)
971892104
-------------------------------------------------------------------------------
(CUSIP Number)
Andrew A. Wiederhorn Lawrence A. Mendelsohn
c/o Fog Cutter Capital Group Inc. c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St. 1410 SW Jefferson St.
Portland, Oregon 97205 Portland, Oregon 97205
(503) 721-6500 (503) 721-6500
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
October 16, 2001
-------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ].
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
CUSIP No. 971892104 13D Page 2 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ANDREW A. WIEDERHORN
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
PF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0 (See Response to Items 4 and 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
3,162,795 (See Response to Items 4 and 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 365,000 (See Response to Items 4 and 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
1,753,035 (See Response to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,162,795
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.22% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 3 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TIFFANY WIEDERHORN
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
PF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 629,255 (See Response to Items 4 and 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
2,533,540 (See Response to Items 4 and 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 629,255 (See Response to Items 4 and 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
1,488,780 (See Response to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,162,795
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.22%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 4 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TTMM, L.P.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 100,000
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 100,000
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100,000
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.95% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 5 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WM STARLIGHT INVESTMENTS, LLC
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 13,826
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 13,826
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,826
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.13% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 6 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
LAWRENCE A. MENDELSOHN
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 175,000
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
25,000
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 200,000
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
200,000
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.87% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 7 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JOYCE MENDELSOHN
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
17,158
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 17,158
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,158
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.16% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 8 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MFLP, L.P.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
80,000
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 80,000
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
80,000
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.76% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 9 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
AIM CAPITAL, LLC
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
150,801
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 150,801
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,801
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.43% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 10 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RPM CAPITAL, LLC
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
252,301
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 252,301
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
252,301
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.40% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 971892104 13D Page 11 of 20 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
S&S INVESTORS, LLC
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
519,500
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 519,500
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
519,500
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.94% (See Response to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
PRELIMINARY NOTE
This Schedule 13D is filed on behalf of a group within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), consisting of Andrew Wiederhorn, Tiffany Wiederhorn, TTMM, L.P., WM
Starlight Investments, LLC, Lawrence A. Mendelsohn, Joyce Mendelsohn, MFLP,
L.P., AIM Capital, LLC, RPM Capital, LLC and S&S Investors, LLC (each a
"Reporting Person" and collectively, the "Reporting Persons").
The Reporting Persons may be deemed to be acting together for purposes of
acquiring, holding, voting or disposing of shares of Common Stock, par value
$0.0001 per share, of Fog Cutter Capital Group Inc., within the meaning of
Section 13(d) of the Exchange Act and Rule 13d-5 promulgated thereunder. An
Agreement to File a Joint Statement on Schedule 13D among the Reporting Persons
authorizing that this Schedule 13D be filed on behalf of each of them is annexed
as Exhibit 1 to this Schedule 13D.
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the Common Stock, par value $0.0001 per share
(the "Common Stock"), of Fog Cutter Capital Group Inc., a Maryland corporation
(formerly known as "Wilshire Real Estate Investment Trust Inc.") (the "Issuer").
The principal executive offices of the Issuer are located at 1410 SW Jefferson
St., Portland, Oregon 97205.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed on behalf of the following persons (each a
"Reporting Person" and collectively, the "Reporting Persons"):
(i) Andrew Wiederhorn ("Mr. Wiederhorn");
(ii) Tiffany Wiederhorn ("Mrs. Wiederhorn");
(iii) TTMM, L.P. ("TTMM");
(iv) WM Starlight Investments, LLC; ("Starlight");
(v) Lawrence A. Mendelsohn ("Mr. Mendelsohn");
(vi) Joyce Mendelsohn ("Mrs. Mendelsohn");
(vii) MFLP, L.P. ("MFLP");
(viii) AIM Capital, LLC ("AIM");
(ix) RPM Capital, LLC ("RPM"); and
(x) S&S Investors, LLC ("S&S").
Mr. Wiederhorn has been the Chairman of the Board of Directors, Chief
Executive Officer, Secretary and Treasurer of Fog Cutter Capital Group Inc.,
formerly known as Wilshire Real Estate Investment Inc. and Wilshire Real Estate
Investment Trust Inc., since its formation in 1997. Mrs. Wiederhorn is a United
States citizen and is the spouse of Mr. Wiederhorn.
TTMM, L.P. is a California limited partnership which is engaged in making
investments. Ivy Capital Partners, L.P., a California limited partnership, is
the general partner of TTMM, L.P.
Page 12 of 20 Pages
The Wiederhorn Family Limited Partnership, a California limited partnership, is
the general partner of Ivy Capital Partners, L.P. Tiffany Wiederhorn is the
general partner of the Wiederhorn Family Limited Partnership.
WM Starlight Investments, LLC is a Delaware limited liability company which
is engaged in making investments. Tiffany Wiederhorn is the managing member and
majority owner of WM Starlight Investments, LLC.
Mr. Mendelsohn is a United States citizen. Mr. Mendelsohn is currently the
President of the Issuer and is a member of the Board of Directors of the Issuer.
Mrs. Mendelsohn is a United States citizen and is the spouse of Mr. Mendelsohn.
MFLP is a Delaware limited partnership. The principal business of MFLP is
investing in securities. The general partners of MFLP are Mr. and Mrs.
Mendelsohn.
AIM is a Delaware limited liability company. The principal business of AIM
is investing in securities. The managing member and the owner of a majority of
the ownership interests of AIM is Mrs. Mendelsohn.
RPM is a Delaware limited liability company. The principal business of RPM
is investing in securities. The managing member and the owner of a majority of
the ownership interests of RPM is Mrs. Mendelsohn.
S&S is a Washington limited liability company. The principal business of
S&S is investing in securities. The managing members of S&S are Susan Sutherlin
and Eric Shuhandler, each of whom are United States citizens.
Schedule A annexed hereto and incorporated by reference sets forth the
addresses of the Reporting Persons.
None of the Reporting Persons has, during the last five years, been
convicted in any criminal proceeding (excluding traffic violations or similar
misdemeanors). None of the Reporting Persons has, 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 judgement, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities laws,
or finding any violations with respect to such laws.
Information with respect to each of the Reporting Persons is given solely
by such Reporting Person and no Reporting Person is responsible for the accuracy
or completeness of information supplied by any other Reporting Person.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On October 16, 2001, Mr. Wiederhorn entered into a Stock Option and Voting
Agreement (the "Voting Agreement") by and among Mr. Wiederhorn, Mrs. Wiederhorn,
Page 13 of 20 Pages
Mr. Mendelsohn, Mrs. Mendelsohn, MFLP, RPM, AIM, S&S (Mr. Mendelsohn, Mrs.
Mendelsohn, MFLP, RPM, AIM and S&S collectively, the "Voting Agreement
Stockholders") and Lawrence A. Mendelsohn, as Agent for the Voting Agreement
Stockholders. The Voting Agreement grants Mr. Wiederhorn the right to vote or
direct the vote of all of the shares of Common Stock held by each such Voting
Agreement Stockholder numbering 1,044,760 in the aggregate. The Voting Agreement
requires that Mr. Wiederhorn vote, for a specified duration extending at least
until the annual meeting of the Issuer that occurs on or before April 30, 2003,
all of the shares of Common Stock for which Mr. Wiederhorn has voting power, in
favor of nominating and appointing Mr. Mendelsohn to the Board of Directors of
the Issuer. Mr. Mendelsohn is currently the President of the Issuer and is a
member of the Board of Directors of the Issuer. In exchange for the voting
rights over the Common Stock held by the Voting Agreement Stockholders, Mr.
Wiederhorn granted each Voting Agreement Stockholder a Put Option (as defined in
the Voting Agreement) whereupon each Voting Agreement Stockholder may require
Mr. Wiederhorn to purchase such Voting Agreement Stockholder's shares in a
specified time period at a price determined from the book value of the Issuer at
the month end prior to the time of exercise of the Put Option.
In the event that a Voting Agreement Stockholder requires Mr. Wiederhorn to
purchase such Voting Agreement Stockholder's shares of Common Stock, Mr.
Wiederhorn must pay such Voting Agreement Stockholder one third of the purchase
price in cash and the remaining two thirds of the purchase price in the form of
a promissory note. Mrs. Wiederhorn has guaranteed the payment obligations of Mr.
Wiederhorn. The form of promissory note is attached to the Voting Agreement as
Exhibit B.
The foregoing summary of the Voting Agreement and the agreements and
transactions contemplated thereby is qualified in its entirety by reference to
the Voting Agreement which is attached hereto as Exhibit 2 and is incorporated
herein by reference.
On October 17, 2001 Mrs. Wiederhorn purchased 10,080 shares of Common Stock
of the Issuer for $3.50 per share. Mrs. Wiederhorn paid for such shares with
personal funds.
ITEM 4. PURPOSE OF THE TRANSACTION.
On October 22, 2001 Mr. Wiederhorn notified the Issuer that he was
nominating himself, Mr. Mendelsohn and three other individuals for election to
the Board of Directors of the Issuer at the next annual meeting of the Issuer at
which directors are elected If successful in electing at least three of such
directors, Mr. Wiederhorn's nominees will constitute a majority of the Board of
Directors and will control the Issuer.
Other than as described above, none of the Reporting Persons has any
present plans or proposals which would related to or would result in (a) the
acquisition by any Reporting Person of additional securities of the Issuer, (b)
an extraordinary corporate transaction, such as a merger, reorganization, or
liquidation involving the Issuer, (c) a sale or transfer of a material amount of
the assets of the Issuer, (d) any change in the present board of directors or to
fill any existing vacancies on the Issuer's board of directors, (e) any material
change in the present capitalization
Page 14 of 20 Pages
or dividend policy of the Issuer, (f) any other material change in the Issuer's
charter, by-laws or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Issuer by any person, (h) causing a
class of securities of the Issuer to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association, (i) a class of equity
securities of the Issuer becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Act, or (j) any action similar to any of
those enumerated above. Item 4 disclosure provisions regarding any plans or
proposals to make any changes in a company's investment policy for which a vote
is required by Section 13 of the Investment Company Act of 1940 are
inapplicable.
Notwithstanding anything contained herein, each of the Reporting Persons
reserves the right, depending on other relevant factors, to purchase additional
shares of Common Stock or to dispose of all or a portion of his or her holdings
of Common Stock or change his or her intention with respect to any and all of
the matters referred to in this Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (c) The ownership by the Reporting Persons of shares of Common Stock
and the percentage of the outstanding shares of Common Stock represented thereby
is as follows:
NUMBER OF SHARES PERCENTAGE OF COMMON
BENEFICIALLY OWNED STOCK OUTSTANDING(1)
------------------ --------------------
Andrew Wiederhorn 3,162,795 (2) 29.22%
Tiffany Wiederhorn 3,162,795 (3) 29.22%
TTMM, L.P. 100,000 0.95%
WM Starlight Investments, LLC 13,826 0.13%
Lawrence A. Mendelsohn 200,000 (4) 1.87%
Joyce Mendelsohn 17,158 (5) 0.16%
MFLP, L.P. 80,000 (6) 0.76%
AIM Capital, LLC 150,801 (7) 1.43%
RPM Capital, LLC 252,301 (8) 2.40%
S&S Investors, LLC 519,500 (9) 4.94%
(1) Based upon 10,507,313 shares of Common Stock outstanding as of June 30,
2001 as reported by the Issuer in its Quarterly Report on Form 10-Q filed
on August 17, 2001.
(2) Includes 743,801 shares of Common Stock owned by the other Reporting
Persons. Andrew Wiederhorn shares voting and dispositive power with respect
to the shares of Common Stock owned by the other Reporting Persons and may
be deemed to be the beneficial owner of all such shares. Andrew Wiederhorn
disclaims beneficial ownership of any of the
Page 15 of 20 Pages
shares of Common Stock owned by the other Reporting Persons. Also, includes
315,000 shares of Common Stock issuable upon the exercise of outstanding
options. Also includes 1,009,954 shares of Common Stock with respect to
which Mr. Wiederhorn has shared voting power and the option to purchase
pursuant to the Put/Call Option and Voting Agreements entered into with
each of Orin Kramer, B.P. Institutional Partners, L.P., Boston Provident
Partners, L.P., Leon & Toby Cooperman Foundation, Watchung Road Associates,
L.P., and Cobalt Capital Management, Inc. on October 16, 2001, and
1,044,760 shares of Common Stock which Mr. Wiederhorn has shared voting
power over pursuant to the Voting Agreement. Andrew Wiederhorn shares
voting and/or dispositive power with respect to such shares of Common Stock
and may be deemed to be the beneficial owner of such shares. Excludes
525,000 shares of Common Stock held in the Fog Cutter Long Term Vesting
Trust (the "Trust") established for the benefit of certain employees of the
Issuer. Although Mr. Wiederhorn and Mr. Mendelsohn act as Trustees for the
Trust, they do not have any beneficial ownership or voting rights with
respect to the 525,000 shares of Common Stock in the Trust. Of the
3,162,795 shares, Andrew Wiederhorn (i) shared power to vote or to direct
the vote of 3,162,795 shares, but did not have any sole power to vote or
direct the vote of any of the shares, (ii) had sole power to dispose or to
direct the disposition of 365,000 of these shares, and (iii) shared power
to dispose or to direct the disposition of 1,753,035 shares.
(3) Includes 478,826 shares of Common Stock owned by other Reporting Persons,
315,000 shares of which are issuable to Mr. Wiederhorn upon the exercise of
outstanding options. Tiffany Wiederhorn shares voting and dispositive power
with respect to the shares of Common Stock owned by TTMM, L.P. and may be
deemed to be the beneficial owner of such shares. Tiffany Wiederhorn
disclaims beneficial ownership of such shares of Common Stock. Also
includes 1,009,954 shares of Common Stock with respect to which Mr.
Wiederhorn has shared voting power and the option to purchase pursuant to
the Put/Call Option and Voting Agreements Mr. Wiederhorn entered into with
each of Orin Kramer, B.P. Institutional Partners, L.P., Boston Provident
Partners, L.P., Leon & Toby Cooperman Foundation, Watchung Road Associates,
L.P., and Cobalt Capital Management, Inc. on October 16, 2001, and
1,044,760 shares of Common Stock which Mr. Wiederhorn has shared voting
power over pursuant to the Voting Agreement. Tiffany Wiederhorn shares
voting and/or dispositive power with respect to such shares of Common Stock
and may be deemed to be the beneficial owner of such shares. Tiffany
Wiederhorn disclaims beneficial ownership of such shares. Of these shares,
Tiffany Wiederhorn (i) had sole power to vote or to direct the vote of
629,255 shares, (ii) shared power to vote or to direct the vote of
2,533,540 shares, (iii) had sole power to dispose or to direct the
disposition of 629,255 of these shares, and (iv) shared power to dispose or
to direct the disposition of 1,488,780 shares. On October 17, 2001 Mrs.
Wiederhorn purchased 10,080 shares of Common Stock of the Issuer for $3.50
per share. Mrs. Wiederhorn paid for such shares with personal funds.
(4) Includes 175,000 shares of Common Stock issuable upon the exercise of
outstanding options. Excludes 525,000 shares of Common Stock held in the
Fog Cutter Long Term Vesting Trust (the "Trust") established for the
benefit of certain employees of the Issuer. Although Mr. Wiederhorn and Mr.
Mendelsohn act as Trustees for the Trust, they do not have any beneficial
ownership or voting rights with respect to the 525,000 shares of Common
Stock in the Trust. Mr. Mendelsohn disclaims beneficial ownership of the
17,158 shares of Common Stock held for the account of Mrs. Mendelsohn, the
80,000 shares of Common Stock held for the account of MFLP, the 150,801
shares of Common Stock held for the account of AIM and the 252,301 shares
of Common Stock held by RPM. As a result of the Voting Agreement, Mr.
Mendelsohn may be deemed to have shared power to direct the voting of the
25,000 shares of Common Stock held for his account. Mr. Mendelsohn has sole
power to direct the voting and disposition of the 175,000 shares of Common
Stock issuable upon the exercise of outstanding options.
(5) Mrs. Mendelsohn disclaims beneficial ownership of the 200,000 shares of
Common Stock held for the account of Mr. Mendelsohn, the 80,000 shares of
Common Stock held for the account of MFLP, the 150,801 shares of Common
Stock held for the account of AIM and the 252,301 shares of Common Stock
held for the account of RPM. As a result of the Voting Agreement, Mrs.
Mendelsohn may be deemed to have shared power to direct the voting of the
17,158 shares of Common Stock held for her account.
(6) As a result of the Voting Agreement, MFLP may be deemed to have shared
power to direct the voting of the 80,000 shares of Common Stock held for
its account. The partners of MFLP have the right to participate in the
receipt of dividends from, or proceeds from the sale of, the shares of
Common Stock held for the account of MFLP in accordance with the MFLP
limited partnership agreement.
(7) As a result of the Voting Agreement, AIM may be deemed to have shared power
to direct the voting of the 150,801 shares of Common Stock held for its
account. The members of AIM have the right to participate in the receipt of
dividends from, or proceeds from the sale of, the shares of Common Stock
held for the account of AIM in accordance with the AIM operating agreement.
Page 16 of 20 Pages
(8) As a result of the Voting Agreement, RPM may be deemed to have shared power
to direct the voting of the 252,301 shares of Common Stock held for its
account. The members of RPM have the right to participate in the receipt of
dividends from, or proceeds from the sale of, the shares of Common Stock
held for the account of RPM in accordance with the RPM operating agreement.
(9) As a result of the Voting Agreement, S&S may be deemed to have shared power
to direct the voting of the 519,500 shares of Common Stock held for its
account. The members of S&S have the right to participate in the receipt of
dividends from, or proceeds from the sale of, the shares of Common Stock
held for the account of S&S in accordance with the S&S operating agreement.
(d) Except as set forth above, each of the Reporting Persons has the right
to receive or the power to direct the receipt of dividends from the shares of
Common Stock of the Issuer held by each such Reporting Person.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The description of the Voting Agreement included in Item 3 above is
incorporated herein by reference.
Except as described in this Schedule 13D and the exhibit hereto, there are
no recent contracts, arrangements, understandings or relationships with respect
to securities of the Issuer.
Page 17 of 20 Pages
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT
NO. DESCRIPTION
-------- -----------
1. Agreement to File a Joint Statement on Schedule 13D among the
Reporting Persons
2. Stock Option and Voting Agreement by and among Lawrence A. Mendelsohn,
an individual, MFLP, L.P., RPM Capital, LLC, AIM Capital, LLC, S&S
Investors, LLC, and Joyce Mendelsohn (together, the "Stockholders"),
Lawrence A. Mendelsohn, as Agent for the Stockholders, Andrew A.
Wiederhorn, and Tiffany Wiederhorn solely with respect to certain
payment obligations.
3. Power of Attorney by Joyce Mendelsohn, AIM Capital, LLC and RPM
Capital, LLC appointing Lawrence A. Mendelsohn as Attorney-in-Fact.
4. Power of Attorney by S&S Investors, LLC appointing Lawrence A.
Mendelsohn as Attorney-in-Fact.
Page 18 of 20 Pages
SIGNATURES AND POWER OF ATTORNEY
After reasonable inquiry and to the best of knowledge and belief of each
person or entity set forth below, each such person or entity certifies that the
information set forth in this Statement is true, complete and correct.
October 26, 2001 /S/ ANDREW WIEDERHORN
--------------------------------------------
Andrew Wiederhorn
October 26, 2001 /S/ TIFFANY WIEDERHORN
--------------------------------------------
Tiffany Wiederhorn
October 26, 2001 TTMM, L.P.
By: IVY CAPITAL PARTNERS,
L.P., its general partner
By: WIEDERHORN FAMILY LIMITED PARTNERSHIP, its
general partner
By: /S/ TIFFANY WIEDERHORN
---------------------------------------
Tiffany Wiederhorn, its General Partner
October 26, 2001 WM STARLIGHT INVESTMENTS, LLC
By: /S/ TIFFANY WIEDERHORN
---------------------------------------
Tiffany Wiederhorn, its Managing Member
October 26, 2001 /S/ LAWRENCE A. MENDELSOHN
--------------------------------------------
Lawrence A. Mendelsohn
October 26, 2001 *
--------------------------------------------
Joyce Mendelsohn
Page 19 of 20 Pages
October 26, 2001 MFLP, L.P.
By: /S/ LAWRENCE A. MENDELSOHN
---------------------------------------
Name: Lawrence A. Mendelsohn
Title: General Partner
October 26, 2001 AIM CAPITAL, LLC
By: *
---------------------------------------
Name: Joyce Mendelsohn
Title: Managing Member
October 26, 2001 RPM CAPITAL, LLC
By: *
---------------------------------------
Name: Joyce Mendelsohn
Title: Managing Member
October 26, 2001 S&S INVESTORS, LLC
By: *
---------------------------------------
Name: Eric Shuhandler
Title: Managing Member
* By: /S/ LAWRENCE A. MENDELSOHN
---------------------------------------
Lawrence A. Mendelsohn
Attorney-in-Fact
Page 20 of 20 Pages
SCHEDULE A
ADDRESSES OF REPORTING PERSONS
Andrew Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, Oregon 97205
Tiffany Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, Oregon 97205
TTMM, L.P.
1410 SW Jefferson St.
Portland, Oregon 97205
WM Starlight Investments, LLC
1410 SW Jefferson St.
Portland, Oregon 97205
Lawrence A. Mendelsohn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, Oregon 97205
Joyce Mendelsohn
c/o Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street, Suite 1400
Portland, Oregon 97201-6632
S&S Investors, LLC
c/o Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street, Suite 1400
Portland, Oregon 97201-6632
MFLP, L.P.
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street, Suite 1400
Portland, Oregon 97201-6632
RPM Capital, LLC
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street, Suite 1400
Portland, Oregon 97201-6632
AIM Capital, LLC
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street, Suite 1400
Portland, Oregon 97201-6632
EXHIBIT 1
SCHEDULE 13D
AGREEMENT TO FILE A JOINT STATEMENT ON SCHEDULE 13D
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 amendments thereto) with respect to
the common stock, par value $0.0001 per share, of Fog Cutter Capital Group Inc.,
a Maryland corporation, and further agrees that this Agreement to File a Joint
Statement on Schedule 13D be included as an exhibit to such joint filings. In
evidence thereof, the undersigned, being duly authorized, have executed this
Agreement to File a Joint Statement on Schedule 13D this 26th day of October
2001.
October 26, 2001 /S/ ANDREW WIEDERHORN
--------------------------------------
Andrew Wiederhorn
October 26, 2001 /S/ TIFFANY WIEDERHORN
--------------------------------------
Tiffany Wiederhorn
October 26, 2001 TTMM, L.P.
By: IVY CAPITAL PARTNERS,
L.P., its general partner
By: WIEDERHORN FAMILY LIMITED
PARTNERSHIP,
its general partner
By: /S/ TIFFANY WIEDERHORN
--------------------------------
Tiffany Wiederhorn,
its General Partner
October 26, 2001 WM STARLIGHT INVESTMENTS, LLC
By: /S/ TIFFANY WIEDERHORN
----------------------------------
Tiffany Wiederhorn,
its Managing Member
October 26, 2001 /S/ LAWRENCE A. MENDELSOHN
-----------------------------------------
Lawrence A. Mendelsohn
Attorney-in-Fact
October 26, 2001 *
-----------------------------------------
Joyce Mendelsohn
October 26, 2001 MFLP, L.P.
By: /S/ LAWRENCE A. MENDELSOHN
----------------------------------
Name: Lawrence A. Mendelsohn
Title: General Partner
October 26, 2001 AIM CAPITAL, LLC
By: *
----------------------------------
Name: Joyce Mendelsohn
Title: Managing Member
October 26, 2001 RPM CAPITAL, LLC
By: *
----------------------------------
Name: Joyce Mendelsohn
Title: Managing Member
October 26, 2001 S&S INVESTORS, LLC
By: *
----------------------------------
Name: Eric Shuhandler
Title: Managing Member
* By: /S/ LAWRENCE A. MENDELSOHN
----------------------------------
Lawrence A. Mendelsohn
Attorney-in-Fact
EXHIBIT 2
STOCK OPTION AND VOTING AGREEMENT
STOCK OPTION AND VOTING AGREEMENT, dated as of October 16, 2001 (this
"Agreement"), by and among Lawrence A. Mendelsohn, ("Mendelsohn"), an
individual, MFLP, L.P. ("MFLP"), RPM Capital, LLC ("RPM"), AIM Capital, LLC
("AIM"), S&S Investors, LLC ("SS"), and Joyce Mendelsohn (together with
Mendelsohn, MFLP, RPM, AIM and S&S, each, a "Stockholder"), each of whom is a
stockholder of Fog Cutter Capital Group Inc., a Maryland corporation (the
"Company"), Lawrence A Mendelsohn, as Agent for the Stockholders ("Agent"),
Andrew A. Wiederhorn, an individual, ("Grantor") and a stockholder of the
Company and Tiffany Wiederhorn ("Guarantor"), solely with respect to the payment
and guarantee obligations set forth in Sections 1(g) and 1(h) hereof.
WHEREAS, Stockholders are the owners of the shares (collectively, the
"Subject Shares") of common stock, par value $.0001 per share ("Company Common
Stock"), of the Company set forth on Schedule 1 hereto;
WHEREAS, Grantor wishes to direct the voting of the shares of the Subject
Shares at his discretion at any annual and special meetings of stockholders of
the Company and in written consents of stockholders in lieu of a meeting of
stockholders, and Stockholders are willing to so vote and to execute an
irrevocable proxy in favor of Grantor for such shares; and
WHEREAS, as a condition and inducement to each Stockholder's entry into
such voting arrangements and execution of the proxy contemplated thereby,
Stockholders have requested that Grantor agree, and Grantor has agreed, to grant
Stockholders the Put Option (as defined below) and to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, Stockholders, the Agent and Grantor agree
as follows:
1. PUT OPTION.
(a) EXERCISE PRICE. The price per share at which the Put Option shall be
exercisable (the "Option Price Per Share") shall equal eighty percent (80%) of
the book value per share of the Company as of the date (the "Evaluation Date")
at the end of the most recent calendar month preceding the delivery of the
Exercise Notice (as defined below). The book value per share of the Company on
the Evaluation Date shall be determined, on a date no later than ten (10)
business days after delivery of the Exercise Notice (the "Determination Date"),
subject to post-closing adjustment of the Option Price Per Share as set forth
herein, from the regular month-end balance sheet of the Company as of the
Evaluation Date. The Option Price Per Share (including any subsequent
adjustments thereof) shall be reduced by any dividends paid, or declared with a
record date, on each Purchased Share after the Evaluation Date but before the
Closing (as defined below).
(b) NUMBER OF OPTION SHARES. Subject to the terms and conditions set forth
in this Agreement, Grantor hereby grants to Stockholders the option (the "Put
Option") to require Grantor to purchase from time to time all or a portion of
the Subject Shares at the Option Price
Page 1
Per Share (such number of shares of Subject Shares as may be adjusted as
provided herein, the "Option Shares").
(c) EXERCISE PERIOD. Each Stockholder's right to require Grantor to
purchase the Option Shares will commence upon January 15, 2002 and will expire
on the fifth anniversary of the date hereof (such period, the "Exercise
Period").
(d) AGENT FOR THE STOCKHOLDERS.
(i) Each Stockholder, hereby appoints Lawrence A. Mendelsohn as agent (the
"Agent") for such Stockholder, and the Agent hereby accepts such appointment, to
exercise the Put Option to receive the Option Price Per Share and to take all
other action on the behalf of or for the benefit of such Stockholder.
(ii) The Agent in such capacity shall not be liable to any of the
Stockholders for any action taken or omitted to be taken by the Agent in good
faith in reliance upon the advice of counsel, independent public accountants or
other experts selected by the Agent, and the Agent in such capacity shall be
entitled to rely upon any notice, consent, certificate, statement or other
document (including any telegram, cable, telex, facsimile or telephone
transmission) believed by it to be genuine and correct and to have been signed
and/or sent by a proper individual, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint
stock company, government (or any agency or political subdivision thereof) or
other entity of any kind (hereinafter, "Person").
(e) EXERCISE OF PUT OPTION. At any time during the Exercise Period, Agent
may exercise the Put Option to require Grantor to purchase any number of Option
Shares (such number of Option Shares specified in an Exercise Notice as being
purchased, the "Purchased Shares") by delivering to Grantor a written notice in
substantially the form attached hereto as Exhibit A (the "Exercise Notice"). In
the event that an Exercise Notice is delivered, the Put Option shall lapse with
respect to any Option Shares not specified as Purchased Shares in such Exercise
Notice. Agent shall give each Stockholder reasonable notice of the intent by
other Stockholders to deliver any Exercise Notice, and opportunity for each
Stockholder to exercise the Put Option with respect to its Option Shares by
inclusion in the Exercise Notice.
(f) Stockholders shall not be under any obligation to exercise the Put
Option, and may allow the Put Option to terminate without selling any Option
Shares hereunder to Grantor.
(g) CLOSING. The closing for the purchase and sale of the Purchased Shares
(the "Closing") shall occur as promptly as practicable, and in any event no
later than thirty (30) days after the Determination Date, or such later date as
the parties hereto may agree. Each Stockholder will cause to be executed and
delivered to Grantor a stock certificate or certificates representing such
Stockholder's pro rata number of the Purchased Shares, duly endorsed for
transfer or accompanied by duly executed (and, if required, guaranteed) stock
powers. Purchased certificates representing the Purchased Shares shall be free
and clear of all liens, claims, charges and encumbrances of any kind whatsoever.
Grantor shall, against delivery of the Purchased Shares, pay to Agent for the
benefit of each Stockholder an amount equal to the product of the
Page 2
number of such Stockholder's Purchased Shares and Option Price Per Share (such
Stockholder's "Total Option Price"), of which one-third of the Total Option
Price for each Stockholder that has exercised the Put Option shall be paid in
immediately available funds (the "Cash Portion of the Option Price") by wire
transfer to such account as Agent shall direct in writing at least two business
days prior to the Closing; Grantor shall deliver to Agent a note in the form
attached hereto as Exhibit B (each, a "Note") in the name of each selling
Stockholder in the principal amount of the remaining two-thirds of the Total
Option Price for such Stockholder's Purchased Shares. The Note(s) shall be joint
and several obligations of Grantor and Guarantor, for good and valuable
consideration, the receipt and sufficiency of which are herein acknowledged.
(h) GUARANTEE; PLEDGE. (i) Guarantor hereby unconditionally and
irrevocably guarantees to each of the Stockholders the full and prompt payment
when due of the Cash Portion of the Option Price to such Stockholder; (ii) The
performance of the obligations of Grantor and Guarantor under each Note shall be
secured by a pledge agreement, in form and substance reasonably acceptable to
Agent, pledging to the Agent two-thirds of the Purchased Shares purchased from
the relevant Stockholder.
(i) POST-CLOSING ADJUSTMENT OF OPTION PRICE.
(i) If the Evaluation Date falls on a month that ends a fiscal quarter, a
revised Option Price Per Share shall be determined from the financial statements
of the Company as set forth in the Company's reports on Form 10-K or Form 10-Q
under the Securities Exchange Act of 1934, as Amended (the "Exchange Act") for
the period ending on the Evaluation Date, no later than three (3) business days
after the public filing of such form.
(ii) Subsection 1(i)(i) above notwithstanding, if reasonably requested by
Grantor or by the Agent on behalf of the Stockholders, a revised Option Price
Per Share shall be determined from a special audit (the "Special Audit") of the
assets and liabilities of the Company conducted in accordance with generally
accepted accounting principles in the United States consistently applied
substantially in accordance with past practices by the independent auditors of
the Company or such other accounting firm as may be reasonably acceptable to
both Grantor and the Agent (the "Auditors"), such audit to be at Grantor's
expense, and the determination to be finalized promptly upon completion of the
Special Audit by the Auditors and approval thereof by the Grantor and Agent.
(iii) In the event that the Option Price Per Share is changed as a result
of the new determinations set forth in subsections 1(i)(i) or 1(i)(ii) above,
the principal amount outstanding under each Note shall be adjusted to equal (a)
the product of the revised Option Price Per Share multiplied by the number of
such Stockholder's Purchased Shares less (b) the Cash Portion of the Option
Price paid to such Stockholder. In the event that the Option Price Per Share
increases by more than five percent (5%), then one third of such increase will
be paid in cash within ten days of the determination of the revised Option Price
Per Share, and the remaining two thirds of such increase will be reflected as
the revised Option Price Per Share pursuant to the first sentence of this
paragraph. Any cash payments described in the preceding sentence are subject to
the obligations set forth in Section 1(h).
Page 3
2. VOTING OF THE SUBJECT SHARES; PROXY.
(a) Each Stockholder agrees, during the term of this Agreement:
(i) to vote its Subject Shares on all matters as to which such Stockholder
is entitled to vote at any meeting of the stockholders of the Company,
including, without limitation, with respect to the election of directors, in the
manner specified in writing by Grantor (which notice shall be delivered on or
prior to the date on which such votes, consents or dissents are to be cast),
which manner shall be determined in Grantor's absolute, sole and binding
discretion; and
(ii) to express consent or dissent to corporate action in writing, without
a meeting, on all of its Subject Shares in the manner specified in writing by
Grantor (which notice shall be delivered on or prior to the date on which such
votes, consents or dissents are to be cast), which manner shall be determined in
Grantor's absolute, sole and binding discretion.
(b) Each Stockholder hereby irrevocably grants to and appoints Andrew A.
Wiederhorn, with full power of substitution (such individual and his substitutes
each being referred to herein as the "Proxy"), as attorneys and proxies to vote
all of such Stockholder's Subject Shares on all matters as to which such
Stockholder is entitled to vote at a meeting of the stockholders of the Company
or to which such Stockholder is entitled to express consent or dissent to
corporate action in writing without a meeting, in the Proxy's absolute, sole and
binding discretion. Each Stockholder agrees that the Proxy may, in such
Stockholder's name and stead, (i) attend any annual or special meeting of the
stockholders of the Company and vote all of such Stockholder's Subject Shares at
any such annual or special meeting, and (ii) execute with respect to all of such
Stockholder's Subject Shares any written consent to, or dissent from, corporate
action respecting any matter to which the stockholders of the Company are
entitled to express such consent or dissent without a meeting. Each Stockholder
agrees to refrain from (a) voting at any annual or special meeting of the
stockholders of the Company, (b) executing any written consent in lieu of a
meeting of the stockholders of the Company, (c) exercising any rights of dissent
with respect to such Stockholder's Subject Shares, (d) granting any proxy or
authorization to any Person (other than the Proxy) with respect to the voting of
such Stockholder's Subject Shares, and (e) taking any action contrary to or in
any manner inconsistent with the terms of this Agreement. Each Stockholder
agrees that the Persons designated as the Proxy pursuant hereto may at any time,
pursuant to an assignment of this Agreement permitted by Section 9(i) hereof,
name any such other Person to whom this Agreement is so assigned, or such
Person's designee (assignment to such a designee being subject to the approval
of Agent, such approval not to be unreasonably withheld), as their substituted
Proxy to act pursuant hereto as to all matters. Except as set forth in the
preceding sentence, Grantor shall not appoint any other person as Proxy without
the prior written consent of Agent, such consent to be granted in Agent's sole
and absolute discretion. Each Stockholder further agrees to execute all
additional writings, consents and authorizations as may be reasonably requested
by the Proxy to evidence the powers granted to the Proxy hereby or to enable the
Proxy to exercise those powers. In discharging his, her or its powers under this
Agreement, the Proxy may rely upon the advice of counsel (which may be Grantor's
counsel), and any vote made or action taken by the Proxy in reliance upon such
advice of counsel shall be deemed to have been made in good faith by the Proxy.
Page 4
(c) Each Stockholder represents that any proxies given prior to this
Agreement regarding any Company Common Stock held by such Stockholder are
revocable, and Stockholder covenants to revoke any such proxies.
(d) Each Stockholder affirms that the irrevocable proxy set forth in this
Section 2 is given in connection with the Put Option. Each Stockholder further
affirms that such irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Each Stockholder ratifies and confirms all actions
that the Proxy may lawfully take or cause to be taken by virtue hereof.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Each Stockholder, hereby
represents and warrants, severally and not jointly, to Grantor as follows:
(a) OWNERSHIP. Such Stockholder beneficially owns the shares of Company
Common Stock set forth opposite such Stockholder's name on Schedule 1 hereto.
(b) DUE AUTHORIZATION. Such Stockholder has all necessary power and
authority (or, if an individual) capacity, to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. Such Stockholder
beneficially owns all of the Subject Shares set forth opposite such
Stockholder's name on Schedule 1 hereto with no contractual restrictions on such
Stockholder's voting rights or rights of disposition pertaining thereto; such
Subject Shares constitute all shares of Company Common Stock beneficially owned
by such Stockholder, and upon exercise of the Put Option, such Stockholder will
deliver good and marketable title to the Option Shares free and clear of liens,
claims, encumbrances or rights or interests, other than liens, claims,
encumbrances or rights in favor of Grantor. Assuming this Agreement has been
duly and validly authorized, executed and delivered by Grantor, and assuming
that this Agreement constitutes a valid and binding agreement of Grantor, this
Agreement constitutes a valid and binding agreement of such Stockholder,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by the principles governing the availability of
equitable remedies.
(c) NO CONFLICTS. Neither the execution and delivery of this Agreement,
nor the consummation by any Stockholder of the transactions contemplated hereby,
will conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which such
Stockholder is a party or by which such Stockholder is bound.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTOR. Grantor hereby
represents, warrants and covenants to each Stockholder as follows:
(a) DUE AUTHORIZATION. Grantor has the requisite capacity to enter into
and perform this Agreement. Assuming this Agreement has been duly and validly
authorized, executed and delivered by each Stockholder, and assuming that this
Agreement constitutes a valid and binding agreement of each Stockholder, this
Agreement constitutes a valid and binding agreement of Grantor, enforceable
against Grantor in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws
Page 5
affecting creditors' rights generally or by the principles governing the
availability of equitable remedies.
(b) NO CONFLICTS. Neither the execution and delivery of this Agreement,
nor the consummation by Grantor of the transactions contemplated hereby, will
conflict with or constitute a violation of or default under any contract,
commitment, agreement, arrangement or restriction of any kind to which Grantor
is a party or by which Grantor is bound.
(c) ACCREDITED INVESTOR. Grantor either (i) has an individual net worth
(or joint net worth with such person's spouse) in excess of $1,000,000, (ii) had
an individual income in excess of $200,000 in each of the two most recent years
and who reasonably expects to have an individual income in excess of $200,000 in
the current year, or (iii) had joint income, including any income attributable
to his spouse or to property owned by his spouse, in excess of $300,000 in each
of the two most recent years and who reasonably expects to have such joint
income in excess of $300,000 in the current year.
(d) GOVERNMENTAL FILINGS. Grantor, Agent and Stockholders shall cooperate
in making all required filings (and amendments thereto) with the Securities and
Exchange Commission and other governmental authorities as a result of this
Agreement that are to be filed by or with respect to both Grantor and one or
more of Agent or the Stockholders, including but not limited to any filing
required by Section 13 of the Securities Exchange Act of 1934, as amended, and
the rules or regulations promulgated thereunder (any "Section 13 Filing").
Grantor shall prepare at its own expense a draft of any Section 13 Filing
listing Grantor and one or more of Agent or the Stockholders, shall provide such
draft to Agent with a reasonable opportunity to review and comment and shall
include therein any information reasonably requested to be included therein by
Agent in the form provided. Grantor shall not make any Section 13 Filing until
Agent approves of the information concerning the Stockholders contained therein,
unless and until required to meet applicable filing deadlines. Grantor shall pay
any filing fee with respect to such Section 13 Filings. Each party hereto shall
bear their own costs, including fees and expenses of counsel, with respect to
all filings. Notwithstanding anything in this Section 4(d), Grantor shall be
solely responsible for preparing and filing amendments to any Section 13 Filing
dated before the date hereof and naming Grantor, and no Stockholder, as a
reporting person.
(e) VOTING MATTERS. Grantor hereby acknowledges that it is seeking from
certain third parties the power to vote shares of Company Common Stock. Grantor
hereby agrees that during the term of this Agreement, so long as Mendelsohn is
an employee of the Company, and in any event until the latest annual meeting of
the stockholders of the Company that occurs on or before April 30, 2003: (i) at
each election of directors of the Company (whether by annual or special meetings
of stockholders, written consents of stockholders in lieu of a meeting or
otherwise) Grantor shall vote all shares of Common Stock to which it has voting
rights, including but not limited to the Subject Shares and any shares of Common
Stock to which it has voting rights, pursuant to proxies, agreements,
understandings or arrangements with third parties, to nominate and appoint
Mendelsohn as a director of the Company; (ii) it will not in any way transfer,
rescind, revoke, amend or vote such proxies or act in any manner inconsistent
with the provisions of this Section 4(e). Grantor covenants not to enter into
any other voting agreement with respect the Subject Shares that is inconsistent
with this Section 4(e).
Page 6
5. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in the outstanding shares of Company Common
Stock by reason of a stock dividend, stock split, split-up, recapitalization,
combination, exchange of shares or similar transaction, the type and number of
Subject Shares, and the Option Price Per Share therefor, shall be adjusted
appropriately.
(b) In the event that the Company shall (i) enter into an agreement to
consolidate with or merge into any Person, other than one of its subsidiaries or
affiliates, and shall not be the continuing or surviving corporation of such
consolidation or merger, or (ii) enter into an agreement to permit any Person,
other than Grantor or one of its subsidiaries or affiliates, to merge into the
Company and the Company shall be the continuing or surviving corporation, but,
in connection with such merger, the then outstanding shares of Company Common
Stock shall be changed into or exchanged for stock or other securities of the
Company or any other Person or cash or any other property or (iii) liquidate,
then, and in each such case, Grantor shall thereafter be entitled to receive
upon exercise of the Put Option the securities or properties to which a holder
of the number of the Subject Shares or the Option Shares then deliverable upon
the exercise thereof will be entitled to receive upon such consolidation, merger
or liquidation, and Stockholder and Grantor shall use their best efforts to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be practicable, in relation to any securities or property
thereafter deliverable upon exercise of the Put Option.
6. TERMINATION. This Agreement, and all rights and obligations of the
parties hereunder (excluding any obligations of the parties under the Notes),
shall terminate immediately upon the earliest to occur of (i) January 15, 2002,
if on or prior to such date all of the directors of the Company shall not have
been elected in an election in which Grantor voted for at least a majority of
the directors elected, (ii) termination of the Exercise Period, or (iii) the
Closing date for the Put Option.
7. TRANSFER OF THE SHARES.
(a) Prior to the termination of this Agreement, except as otherwise
provided herein, no Stockholder shall, and the Agent shall not for any
Stockholder: (i) transfer, sell, gift-over, pledge or otherwise dispose of, or
consent to any of the foregoing ("Transfer"), any or all of the Subject Shares
or any interest therein; (ii) enter into any contract, option or other agreement
or understanding with respect to any Transfer; (iii) grant any proxy,
power-of-attorney or other authorization or consent with respect to any of the
Subject Shares; (iv) deposit any of the Subject Shares into a voting trust, or
enter into a voting agreement or arrangement with respect to any of the Subject
Shares; or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby.
(b) Notwithstanding Subsection (a) above, a Stockholder may make transfers
of Subject Shares to the spouse or lineal descendants of such Stockholder, to
any trust for the benefit of such holder or the benefit of the spouse and/or
lineal descendants of such Stockholder, to any corporation, partnership, limited
liability company or other entity in which such Stockholder, the spouse and/or
the lineal descendants of such Stockholder are the direct and
Page 7
beneficial owners of all of the equity interests for estate planning purposes
(provided that Stockholder, spouse and/or descendants agree in writing to remain
the beneficial owners of all such interests), or to the personal representative
of such Stockholder upon such Stockholder's death for purposes of administration
of such Stockholder's estate or upon such holder's incompetency for purposes of
the protection and management of the assets of such Stockholder; PROVIDED that
any such transferee shall, prior to such transfer, consent in a writing
delivered to Grantor to be bound by this Agreement and deliver to Grantor an
irrevocable power of attorney with respect to the transferred Subject Shares.
(c) Each Stockholder agrees to cause to be placed on any and all certificates
evidencing such Stockholder's Subject Shares the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A VOTING AGREEMENT, INCLUDING AN IRREVOCABLE PROXY, AND
CERTAIN RESTRICTIONS ON TRANSFER, PURSUANT TO THAT CERTAIN STOCK
OPTION AND VOTING AGREEMENT, DATED AS OF OCTOBER 16, 2001, BY AND
AMONG ANDREW A. WIEDERHORN, TIFFANY WIEDERHORN, LAWRENCE A.
MENDELSOHN, MFLP, RPM CAPITAL, LLC, AIM CAPITAL, LLC, S&S INVESTORS,
LLC AND JOYCE MENDELSOHN.
8. NO SOLICITATION. No Stockholder shall, nor shall it permit any of its
subsidiaries or any of its affiliates to, nor shall it authorize or permit any
agent, officer, director or employee of, or any investment banker, attorney or
other advisor or representative of, any Stockholder or any of their subsidiaries
or any of such Stockholder's affiliates to, directly or indirectly, solicit,
initiate, or encourage any inquiries or proposals from, discuss or negotiate
with, or provide any non-public information to, any Person (other than Grantor)
relating to any transaction involving the sale of any of the assets of the
Company, or any of the capital stock of the Company, or any merger,
consolidation, business combination, or similar transaction involving the
Company or any of its subsidiaries.
9. MISCELLANEOUS.
(a) STOCKHOLDER CAPACITY. None of the parties to this Agreement shall be
deemed to have made any agreement or understanding in his or her capacity as a
director or officer of the Company and no action taken by any of the parties in
his or her capacity as a director or officer of the Company shall be deemed a
breach of this Agreement. Each of the parties executes this Agreement solely in
his or her capacity as the beneficial owner, where applicable, of Company Common
Stock.
(b) EXPENSES. Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by it or on
its behalf in connection with the transactions contemplated hereunder, including
fees and expenses of its own financial consultants, investment bankers,
accountants and counsel.
(c) WAIVER AND AMENDMENT. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement
Page 8
may not be modified, amended, altered or supplemented except upon the execution
and delivery of a written agreement executed by Grantor and Agent.
(d) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder. If any
term or provision of this Agreement is held by a court of competent jurisdiction
or a federal or state regulatory agency to be invalid, void or unenforceable,
the remainder of the terms or provisions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. If
for any reason such court or regulatory agency determines that the Put Option
does not permit each Stockholder to sell the full number of shares of Company
Common Stock as provided in Section 1(b) (as adjusted pursuant to Section 1(b)),
it is the express intention of Grantor to allow each Stockholder to sell such
lesser number of shares as may be permissible without any amendment or
modification hereof.
(e) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with laws of the State of Maryland.
(f) HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(g) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopies (with
confirmation) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to a Stockholder to:
The address set forth under such Stockholder's name on
Schedule 1 hereto.
If to Grantor, to:
Andrew A. Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 S.W. Jefferson Street
Portland, Oregon 97201
Telecopier no.: (503) 553-7401
with a copy to:
V. Joseph Stubbs, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Telecopier no.: (310) 229-1001
Page 9
If to Agent, to:
Lawrence A. Mendelsohn, as Agent
c/o James L. Sanders, Esq. and Mark J. Mihanovic, Esq.
McDermott, Will & Emery
2049 Century Park East, 34th Floor
Los Angeles, California 90067-3208
Telecopier no.: (310) 277-4730
with a copy to:
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
(i) ASSIGNMENT; DELEGATION. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties except that: (i) the rights of Grantor under this
agreement may be assigned to the spouse or lineal descendants of Grantor, to any
trust for the benefit of Grantor or the benefit of the spouse and/or lineal
descendants of Grantor, to any corporation, partnership, limited liability
company or other entity in which Grantor, the spouse and/or the lineal
descendants of Grantor are the direct and beneficial owners of all of the equity
interests for estate planning purposes (provided that Grantor, spouse and/or
descendants agree in writing to remain the beneficial owners of all such
interests), or to the personal representative of Grantor upon such Grantor's
death for purposes of administration of Grantor's estate or upon such Grantor's
incompetency for purposes of the protection and management of the assets of
Grantor; provided that any such assignee shall, prior to such transfer, consent
in a writing delivered to Agent to be bound by this Agreement; and (ii) the
obligations of Grantor under Section 1 hereto may be delegated to the Company to
the extent that such obligations are permitted to be delegated to the Company
pursuant to applicable law. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
permitted successors, assigns, heirs, executors, administrators and other legal
representatives.
(j) FURTHER ASSURANCES. Each Stockholder, the Agent and Grantor shall
execute and deliver all other documents and instruments and take all other
action that may be reasonably necessary in connection with the matters provided
for hereby.
(k) SPECIFIC PERFORMANCE. The parties acknowledge that it would be
impossible to fix money damages for violations of this Agreement and that such
violations will
Page 10
cause irreparable injury for which adequate remedy at law is not available and,
therefore, this Agreement must be enforced by specific performance or injunctive
relief. The parties hereto agree that any party may, in its sole discretion,
apply to any court of competent jurisdiction for specific performance or
injunctive or such other relief as such court may deem just and proper in order
to enforce this Agreement or prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection or defense to the
imposition of such relief. Nothing herein shall be construed to prohibit any
party from bringing any action for damages in addition to an action for specific
performance or an injunction for a breach of this Agreement.
(l) SURVIVAL. The representations, warranties, covenants and agreements in
this Agreement (other than the obligations of the parties under the Notes) shall
terminate upon termination of this Agreement.
(m) INDEPENDENT COUNSEL. Each of the parties acknowledges that it has been
represented, or has had the opportunity to be represented, by independent
counsel of such party's choice throughout all negotiations that have preceded
the execution of this Agreement and that, to the extent applicable to such
party, has executed the same with consent and upon the advice of said
independent counsel. Each party and its counsel, as applicable, cooperated in
the drafting and preparation of this Agreement and the documents referred to
herein, and any and all drafts relating thereto shall be deemed the work product
of the parties and may not be construed against any party by reason of its
preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against the party
that drafted it is of no application and is hereby expressly waived. The
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the intentions of the parties and this Agreement.
[SIGNATURE PAGE FOLLOWS]
Page 11
IN WITNESS WHEREOF, Stockholders, Agent, Grantor and Guarantor have
executed this Stock Option and Voting Agreement all as of the day and year first
written above.
GRANTOR:
/S/ ANDREW A. WIEDERHORN
---------------------------------------
Andrew A. Wiederhorn
GUARANTOR:
/S/ TIFFANY WIEDERHORN
---------------------------------------
Tiffany Wiederhorn, solely with respect
to the obligations set forth in Sections
1(g) and 1(h)
STOCKHOLDERS:
/S/ LAWRENCE A. MENDELSOHN
---------------------------------------
Lawrence A. Mendelsohn
/S/ LAWRENCE A. MENDELSOHN
---------------------------------------
Joyce Mendelsohn,
by Lawrence A. Mendelsohn as
Attorney-in-Fact
S&S Investors, LLC
By: /S/ LAWRENCE A. MENDELSOHN
------------------------------------
Name: Eric Shuhandler
Title: Managing Member,
by Lawrence A. Mendelsohn as
Attorney-in-Fact
Page 12
MFLP, L.P.
By: /S/ LAWRENCE A. MENDELSOHN
------------------------------------
Name: Lawrence A. Mendelsohn
Title: General Partner
RPM Capital, LLC
By: /S/ LAWRENCE A. MENDELSOHN
------------------------------------
Name: Joyce Mendelsohn
Title: Managing Member,
by Lawrence A. Mendelsohn as
Attorney-in-Fact
AIM Capital, LLC
By: /S/ LAWRENCE A. MENDELSOHN
------------------------------------
Name: Joyce Mendelsohn
Title: Managing Member,
by Lawrence A. Mendelsohn as
Attorney-in-Fact
AGENT:
/S/ LAWRENCE A. MENDELSOHN
---------------------------------------
Lawrence A. Mendelsohn, as Agent
Page 13
SCHEDULE 1
STOCKHOLDERS
STOCKHOLDER SUBJECT SHARES
Lawrence A. Mendelsohn 25,000
c/o James L. Sanders, Esq. and Mark J. Mihanovic, Esq.
McDermott, Will & Emery
2049 Century Park East, 34th Floor
Los Angeles, California 90067-3208
Telecopier no.: 310-277-4730
Joyce Mendelsohn 17,158
c/o Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
S&S Investors, LLC 519,500
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
MFLP, L.P. 80,000
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
Page 14
RPM Capital, LLC 252,301
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
AIM Capital, LLC 150,801
Linda Johannsen, Esq.
Preston, Gates & Ellis, LLP
222 S.W. Columbia Street
Suite 1400
Portland, Oregon 97201-6632
Telecopier no.: (503) 248-9085
Page 15
EXHIBIT A
NOTICE OF EXERCISE
Andrew Wiederhorn
[Address]
[Address]
Dear ____________:
Reference is made to that certain Stock Option and Voting Agreement (the
"OPTION AGREEMENT"), dated as of October [16], 2001, by and among Andrew A.
Wiederhorn, Tiffany Wiederhorn, Lawrence A. Mendelsohn, MFLP, RPM Capital, LLC,
AIM Capital, LLC, S&S Investors, LLC and Joyce Mendelsohn. Capitalized terms
used in this notice, but not otherwise defined, will have the meanings assigned
to such terms in the Option Agreement.
1. EXERCISE OF OPTIONS. Agent, on behalf of the Stockholders, hereby
elects to exercise its option to require Grantor to purchase _______ Option
Shares (such shares, the "PURCHASED SHARES") at the Option Price Per Share.
2. TENDER OF SHARES. Agent, on behalf of the several Stockholders, will
cause the Purchased Shares to be delivered to Grantor at the Closing.
3. TENDER OF PURCHASE PRICE. The Total Option Price will be determined,
and Grantor will tender the Total Option Price, in the manner provided in
SECTION 1(G) of the Option Agreement.
IN WITNESS WHEREOF, Agent, on behalf of each Stockholder, has caused this
Notice of Exercise to be executed as of the ____ day of _________, 200__.
--------------------
as Agent for the Stockholders
By:
---------------------------------------------
Name:
Title:
Page 16
EXHIBIT B
FORM OF
PROMISSORY NOTE
$-------
[City], [State]
______, 200_
PROMISSORY NOTE, (this "NOTE"), by and between Andrew A. Wiederhorn and
Tiffany Wiederhorn, jointly and severally (each an "OBLIGOR" and together, the
"OBLIGORS") and _____________("STOCKHOLDER") or assigns.
WHEREAS, Stockholder is the owner of the shares of common stock, par value
$.0001 per share, of Fog Cutter Capital Group, Inc., a Maryland corporation (the
"Company");
WHEREAS, Stockholder, Andrew A. Wiederhorn ("GRANTOR") and certain other
owners of stock of the Company are parties to that certain Stock Option and
Voting Agreement (the "Voting Agreement") dated as of October 16, 2001 wherein,
as a condition and inducement to Stockholder's entry into such voting
arrangements and execution of the proxy contemplated thereby, Grantor granted
Stockholder the Put Option (as defined in the Voting Agreement);
WHEREAS, pursuant to Section 1(g) of the Voting Agreement, Grantor has
agreed to deliver this Note, in the principal reflected herein as payment for
two-thirds of the Total Option Price (as defined in the Voting Agreement) for
Stockholder's Subject Shares in the name of the Stockholder.
NOW, THEREFORE, the Obligors do hereby promise to pay to the order of
Stockholder or assigns, at such place as Stockholder shall designate, the
principal sum of $______ in lawful money of the United States of America,
according to the terms and subject to the conditions set forth in this Note,
subject to adjustment as set forth in Section 1(i) of the Voting Agreement.
1. INTEREST.
This Note shall not bear any interest until a date ninety (90) days after
the date hereof; from and after that date, the unpaid principal balance of this
Note shall bear interest at the rate of Twelve Per Cent (12%) per annum, such
interest to be computed on the basis of a 360 day year and actual days elapsed
from such date. Interest shall accrue and be payable monthly until the Maturity
Date (as defined below).
Page 1
2. PAYMENT SCHEDULE.
(a) All outstanding principal and accrued interest thereon, shall be due
and payable on the date that is the same day of the month eleven months after
the date of this Note (the "MATURITY DATE"), PROVIDED that if the Maturity Date
does not fall on a day that is a day on which banks in New York City, New York
are open to receive wire transfers (a "Business Day"), the Maturity Date shall
be the next Business Day.
3. PREPAYMENT.
(b) All payments shall be first applied to interest and the balance to the
principal. The Obligors may, at their option, at any time and from time to time,
prepay all or any part of the balance of this Note, without penalty or premium.
4. EVENTS OF DEFAULT.
(a) EVENTS OF DEFAULT. The occurrence of any of the following events or
conditions shall constitute an event of default (an "EVENT OF DEFAULT") with
respect to the Obligors under this Note: (i) any amounts due under this Note,
whether principal, interest or otherwise, are not paid when due; (ii) any
involuntary petition is filed against the Obligors seeking to subject the
Obligors to any bankruptcy, insolvency or similar laws and such petition shall
remain unstayed or not be withdrawn within 30 days thereafter; (iii) the
Obligors (a) are unable to, or admit in writing their inability to pay such
debts belonging to such Obligors as they mature; (b) make a general assignment
for the benefit of creditors; (c) file a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization or an arrangement for the benefit
of creditors or take advantage of any insolvency law in its capacity as a
debtor; (d) take any action that would have the effect of dissolving the
Obligors; or (e) take any action for the purpose of effecting any of the
foregoing.
(b) REMEDIES. At any time upon the occurrence of, and/or any time after, an
Event of Default until such time as the Event of Default is cured and no longer
existing: (i) Stockholder may without any demand, presentment, protest or other
notice to the Obligors, or other statutory right or other rights of redemption,
or any other action by the Stockholder, all of which are hereby expressly waived
by the Obligors, declare the entire amount of this Note, and all interest
accrued thereon, immediately due and payable; and (ii) the Obligors will pay to
Stockholder upon demand all costs and expenses (including, without limitation,
attorneys' fees and expenses) incurred by Stockholder in connection with the
collection, realization and enforcement of this Note. It is expressly understood
and agreed that Stockholder may pursue either Obligor, or both, in the Event of
Default.
Page 2
5. MISCELLANEOUS.
(a) WAIVER. Failure or delay on the part of Stockholder to enforce any
provision of this Note shall not be deemed a waiver of any such provision, nor
shall Stockholder be estopped from enforcing any such provision at a later time.
(b) MODIFICATION. This Note may not be changed, modified or terminated
orally, but only by an agreement in writing signed by both parties.
(c) BINDING AGREEMENT. The Obligors and all other parties to this Note,
whether as endorsers, guarantors, sureties or otherwise, severally agree to
remain fully bound until this Note shall be fully paid and waive demand,
presentment, notice of dishonor, notice of acceleration of the maturity hereof,
diligence in collection, grace period, notice period, the right to plead any
statute of limitations as a defense to any demand hereunder and right of protest
and consent to all extensions which from time to time may be granted by the
Stockholder.
(d) GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of Maryland.
[Signatures appear on next page]
Page 3
IN WITNESS WHEREOF, each Obligor has caused this Note to be executed as of
the day and year first above written.
OBLIGORS:
-----------------------------------
Andrew A. Wiederhorn
-----------------------------------
Tiffany Wiederhorn
Page 4
EXHIBIT 3
POWER OF ATTORNEY
The undersigned hereby constitute and appoints Lawrence A. Mendelsohn the
true and lawful attorney-in-fact of the undersigned (the "Attorney-in-Fact"),
for the undersigned in any and all capacities, to sign and file any and all
forms, schedules, statements and other documents, including any amendments
thereto, required to be filed by the undersigned with the Securities and
Exchange Commission with respect to shares of common stock, par value $.0001 per
share of Fog Cutter Capital Group Inc. held by the undersigned.
The undersigned hereby grant to such Attorney-in-Fact full power and
authority to do and perform each and every act and thing whatsoever requisite,
necessary, or proper to be done in the exercise of any of the rights and powers
herein granted, as fully to all intents and purposes as the undersigned could do
and confirming all that such Attorney-in-Fact shall lawfully do or cause to be
done by virtue of this Power of Attorney and the rights and powers herein
granted.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Power of Attorney this 25th day of October, 2001.
/S/ JOYCE MENDELSOHN
----------------------------------
Joyce Mendelsohn
AIM Capital, LLC
By: /S/ JOYCE MENDELSOHN
-----------------------------
Name: Joyce Mendelsohn
Title: Managing Member
RPM CAPITAL, LLC
By: /S/ JOYCE MENDELSOHN
-----------------------------
Name: Joyce Mendelsohn
Title: Managing Member
EXHIBIT 4
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Lawrence A.
Mendelsohn the true and lawful attorney-in-fact of the undersigned (the
"Attorney-in-Fact"), for the undersigned in any and all capacities, to sign and
file any and all forms, schedules, statements and other documents, including any
amendments thereto, required to be filed by the undersigned with the Securities
and Exchange Commission with respect to shares of common stock, par value $.0001
per share of Fog Cutter Capital Group Inc. held by the undersigned.
The undersigned hereby grants to such Attorney-in-Fact full power
and authority to do and perform each and every act and thing whatsoever
requisite, necessary, or proper to be done in the exercise of any of the rights
and powers herein granted, as fully to all intents and purposes as the
undersigned could do and confirming all that such Attorney-in-Fact shall
lawfully do or cause to be done by virtue of this Power of Attorney and the
rights and powers herein granted.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Power of Attorney this 24th day of October, 2001.
S&S Investors, LLC
By: /S/ ERIC SHUHANDLER
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Name: Eric Shuhandler
Title: Managing Member