SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(Amendment No. 1) *
NOBLE ROMAN'S INC
------------------------------------------------------
(Name of Issuer)
COMMON STOCK
------------------------------------------------------
(Title of Class of Securities))
655107100
------------------------------------------------------
(CUSIP NUMBER)
SUMMITBRIDGE NATIONAL INVESTMENTS LLC
C/O FORTRESS INVESTMENT GROUP LLC
1251 AVENUE OF THE AMERICAS, 16TH FLOOR
NEW YORK, NEW YORK 10020
ATTN: KEVIN TREACY
(212) 798-6071
------------------------------------------------------
(Name, address and telephone number of person
authorized to receive notices and communications)
August 1, 2005
------------------------------------------------------
(Date of event which requires filing of this statement))
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
(Continued on following pages)
--------------------------------------------------------
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 655107100 13D Page 2 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
SummitBridge National Investments LLC
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
-------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4% See Item 5
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 3 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Drawbridge Special Opportunities Fund LP
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 4 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Drawbridge Special Opportunities Advisors LLC
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 5 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Fortress Investment Group LLC
-------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 6 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
D.B. Zwirn Special Opportunities Fund, L.P.
(f/k/a Highbridge/Zwirn Special Opportunities Fund, L.P.)
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
------------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 7 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
D.B. Zwirn & Co., L.P. (f/k/a
Highbridge/Zwirn Capital Management, LLC)
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
--------------------------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 8 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
DBZ GP, LLC
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
00
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 9 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Zwirn Holdings, LLC (f/k/a
D.B. Zwirn & Co., LLC)
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
WC
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
00
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 10 of 18 Pages
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Daniel B. Zwirn
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS
00
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES
-----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
-0-
OWNED BY
-----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
--------------------------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,242,840 shares of Common Stock
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.4%, See Item 5.
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 655107100 13D Page 11 of 18 Pages
THIS AMENDED AND RESTATED SCHEDULE 13D RELATES TO THE SCHEDULE 13D
ORIGINALLY FILED ON BEHALF OF THE REPORTING PERSONS WITH THE SECURITIES AND
EXCHANGE COMMISSION ON FEBRUARY 11, 2004. THE TEXT OF SAID SCHEDULE 13D IS
HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
Item 1. Security and Issuer.
This statement relates to the Common Stock, no par value per share (the
"Shares" or "Common Stock") of Noble Roman's Inc, an Indiana corporation (the
"Company"). The Company's principal executive offices are located at One
Virginia Avenue, Suite 800, Indianapolis, Indiana 46204.
Item 2. Identity and Background.
(a) This statement is filed jointly pursuant to Rule 13d-(1)(k)
by:
(i) SummitBridge National Investments LLC, a Delaware limited
liability company ("SummitBridge LLC") with respect to the Shares
directly owned by it;
(ii) Drawbridge Special Opportunities Fund LP, a Delaware limited
partnership ("Drawbridge LP"), is the sole member of SummitBridge LLC
other than D.B. Zwirn Special Opportunities Fund, L.P., f/k/a Highbridge
/Zwirn Special Opportunities Fund, L.P., a Delaware limited partnership
("D.B. Zwirn L.P."), with respect to the Shares directly owned by
SummitBridge LLC;
(iii) Drawbridge Special Opportunities Advisors LLC, a Delaware
limited liability company ("Drawbridge Advisors"), which acts as advisor
to Drawbridge LP, with respect to the Shares directly owned by
SummitBridge LLC;
(iv) Fortress Investment Group LLC, a Delaware limited liability
company ("Fortress"), which is the managing member of Drawbridge
Advisors, with respect to the Shares directly owned by SummitBridge LLC;
CUSIP No. 655107100 13D Page 12 of 18 Pages
(v) D.B. Zwirn L.P. is the sole member of SummitBridge LLC other
than Drawbridge LP, with respect to the Shares directly owned by
SummitBridge LLC;
(vi) D.B. Zwirn & Co., L.P., f/k/a Highbridge/Zwirn Capital Management,
LLC, a Delaware limited partnership ("DBZCO") is the trading manager of
D.B. Zwirn L.P., with respect to the Shares directly owned by
SummitBridge LLC;
(vii) DBZ GP, LLC is the general partner of DBZCO with respect
to the Shares directly owned by SummitBridge LLC;
(viii) Zwirn Holdings, LLC, f/k/a D.B. Zwirn & Co., LLC, is the
managing member of DBZ GP, LLC with respect to the Shares directly owned
by SummitBridge LLC; and
(ix) Daniel B. Zwirn, is an individual and is the managing
member of Zwirn Holdings, LLC.
The foregoing persons are hereinafter sometimes collectively referred to as
the "Reporting Persons." Any disclosures herein with respect to persons other
than the Reporting Persons are made on information and belief after making
inquiry to the appropriate party.
(b) The address of the principal office of SummitBridge LLC, Drawbridge LP,
Drawbridge Advisors and Fortress is c/o Fortress Investment Group, 1251 Avenue
of the Americas, Suite 1600, New York, New York 10020, Attention: Kevin Treacy.
The address of the principal office of D.B. Zwirn L.P., DBZCO, DBZ GP, LLC,
Zwirn Holdings, LLC, and Daniel B. Zwirn is 745 Fifth Avenue, 18th Floor, New
York, New York 10151, Attention: Daniel B. Zwirn.
(c) The principal business of each of SummitBridge LLC, Drawbridge LP,
Fortress and D.B. Zwirn L.P. is that of an investment fund. The principal
business of Drawbridge Advisors, DBZCO and Zwirn Holdings LLC is that of an
investment manager. The principal business of DPZ GP, LLC is that of acting as a
general partner of DBZCO.
(d) None of the Reporting Persons has, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) 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
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or State securities laws or finding
any violation with respect to such laws.
(f) Each of SummitBridge LLC, Drawbridge Advisors, Fortress, DBZ GP, LLC,
and Zwirn Holdings, LLC, is a limited liability company organized under the
laws of the State of Delaware. Each of Drawbridge LP, DBZCO and D.B. Zwirn L.P.
is a limited partnership formed under the laws of the State of Delaware. Daniel
B. Zwirn is a citizen of the United States.
Item 3. Source and Amount of Funds and Other Consideration.
The Shares owned directly by SummitBridge LLC, and the Shares beneficially
owned indirectly by Drawbridge LP, Drawbridge Advisors, Fortress, D.B. Zwirn
L.P., DBZCO, Zwirn Holdings, LLC, DBZ GP, LLC and Daniel B. Zwirn, were received
by SummitBridge LLC pursuant to that certain Loan Sale Agreement (the "Loan Sale
Agreement") dated as of October 16, 2003 by and among SummitBridge LLC and
CUSIP No. 655107100 13D Page 13 of 18 Pages
Provident Bank. Pursuant to the Loan Sale Agreement, SummitBridge LLC
purchased, for an aggregate purchase price of $6,980,784, $8,000,000 principal
amount of loans (the "Loans"), 3,214,748 shares of Common Stock of the Company,
4,929,275 Shares of convertible Preferred Stock of the Company which are
convertible into 1,643,092 shares of Common Stock, and Warrants to purchase
385,000 shares of Common Stock (the "Warrants"). The Purchase Price was
allocated by SummitBridge LLC as follows: $6,423,000 was allocated to the Loans,
$344,376 was allocated to the Common Stock, $176,014.28 was allocated to the
Preferred Stock and $37,393 was allocated to the Warrants.
Item 4. Purpose of the Transaction.
The purpose of the acquisition of the Shares by the Reporting Persons was
for investment and was not made for the purpose of acquiring control of the
Company.
On March 12, 2004, the Company filed a lawsuit against SummitBridge and
certain other Reporting Persons in the Superior Court of Marion County, Indiana
(Cause No. 49D11-0403-PL-00531) that, among other things, sought a declaration
that the Indiana Business Combination Law prohibits SummitBridge LLC from
seeking to enforce the promissory note evidencing the Loans until the fifth
anniversary of the acquisition by SummitBridge LLC of 15.0% or more of the
Company's outstanding common stock and that the Indiana Control Share
Acquisition Law denies Summitbridge LLC voting rights with respect to its stock
in the Company. SummitBridge answered the complaint and counterclaimed to
enforce the promissory note and certain other rights held by Summitbridge. (This
litigation is collectively referred to herein as the "Indiana Litigation.") The
Indiana Litigation is still pending.
Pursuant to a Settlement Agreement dated as of August 1, 2005, by and among
the Company, Oak Grove Corp., Pizzaco, Inc., LPS, Inc., G.N.R., Inc. and N.R.
East, Inc., on behalf of themselves and each of their officers, directors,
employees and shareholders, including but not limited to Paul W. Mobley and
Scott Mobley, and each of their agents, affiliates, subsidiaries and
successors-in-interest, and SummitBridge LLC, Drawbridge LP and D.B. Zwirn L.P.,
on behalf of themselves and each of their general partners, limited partners,
members, managers, managing members and the employees, agents, officers,
directors, shareholders, affiliates, subsidiaries and successors-in-interest of
each, including, but not limited to, Summit Investment Management LLC (the
"Settlement Agreement"), the Company will acquire all of SummitBridge LLC's debt
and equity interests in the Company, except for 2,400,000 shares of Common
Stock, for a purchase price of $8,300,000 at the closing. These debt and equity
interests consist of the promissory note for a face amount of $8,000,000;
3,214,748 shares of the Company's Common Stock; the $4,929,275 stated amount of
the Company's no-yield preferred stock convertible into 1,643,092 shares of
Common Stock; and the Warrant to purchase 385,000 shares of the Company's Common
Stock. In addition, under the Settlement Agreement, SummitBridge LLC will
release Paul W. Mobley, Oak Grove Corp., Pizzaco, Inc., LPS, Inc., G.N.R., Inc.
and N.R. East, Inc. as guarantors with respect to certain obligations of the
Company and will relinquish its right in the related guarantees.
The closing under the Settlement Agreement is contingent upon, among other
things, the Company obtaining financing by August 25, 2005, in an amount
necessary to complete the transactions contemplated by the Settlement Agreement
CUSIP No. 655107100 13D Page 14 of 18 Pages
and otherwise generally on terms not less favorable than a previously issued
commitment letter.
Under the Settlement Agreement, the Company and Paul W. Mobley agree to use
commercially reasonable efforts to assist SummitBridge LLC over a six- to
nine-month period after closing in finding one or more buyers for the Company
Common Stock SummitBridge LLC retains, subject to certain conditions, which
include, among other things, a minimum sale price of $1.10 per share. During
this time, SummitBridge LLC agrees not to sell any of the Company Common Stock
it retains in the open market without the Company's consent, except that
SummitBridge LLC may sell any retained stock to buyers who offer to purchase the
shares above the minimum price. The Company agrees, with certain exceptions, to
indemnify SummitBridge LLC, Drawbridge LP and D.B. Zwirn L.P. against all claims
arising out of the offer or sale of their retained stock with the Company's
assistance.
SummitBridge LLC agrees that it will have no voting rights with respect to
its retained shares as a result of the Indiana Control Share Acquisition Act.
However, following the six- to nine- month period after closing, the Company and
its executive officers will use commercially reasonable efforts to cause the
Company shareholders to vote to restore SummitBridge LLC's voting rights on any
retained shares that SummitBridge LLC then owns. Paul W. Mobley and Scott Mobley
also agree to vote the shares they own in favor of the restoration of Common
Stock voting rights to SummitBridge LLC. In addition, if SummitBridge LLC still
holds at least 1,200,000 shares of the retained stock six months after closing,
SummitBridge LLC will have the right to appoint an individual to hold the seat
of a single observer to the Company's Board of Directors. The individual
appointed will have the right, subject to a confidentiality agreement in the
form agreed to by the parties, to actively participate, but not vote at, any
Board of Director's meetings. SummitBridge LLC will have this right as long as
it owns at least 750,000 shares of the retained stock. Also after the six- to
nine-month period, if SummitBridge LLC then owns 5% or more of the Company's
outstanding shares, SummitBridge LLC will have certain registration rights with
respect to the shares of Common Stock it still holds.
SummitBridge LLC, Drawbridge LP and D.B. Zwirn L.P. also agree that, for a
period of two years from the closing, they will not engage in any proxy contest
or tender offer involving the Company's common stock, except as permitted under
the Settlement Agreement or as approved by the Company's Board of Directors.
Upon closing of the transactions contemplated by the Settlement Agreement,
the Indiana Litigation will be settled and all remaining claims asserted by the
parties will be dismissed, and mutual releases executed by the parties will take
effect. The Settlement Agreement provides that in resolving the Indiana
Litigation, the parties do not in any way admit to the liability or validity of
any of the claims or matters being resolved. The parties also agree to obtain a
judicial declaration that SummitBridge LLC is not an "interested shareholder" of
the Company within the meaning of the Indiana Business Combination Law with
respect to the Settlement Agreement or SummitBridge LLC's ongoing ownership of
2,400,000 shares of common stock in the Company and that SummitBridge LLC
remains subject to the Indiana Control Share Acquisition Law. The parties agree
to mutually indemnify the others from any costs incurred in connection with any
future claim raised by the indemnifying party or parties that asserts any of the
claims that are released.
CUSIP No. 655107100 13D Page 15 of 18 Pages
Although the acquisition of the Shares by the Reporting Persons was for
investment purposes, each Reporting Person may, subject to the terms of the
Settlement Agreement, pursue discussions with management to maximize long-term
value for shareholders. Subject to the terms of the Settlement Agreement, each
of the Reporting Persons may make further purchases of shares of Common Stock
and Preferred Stock from time to time and may dispose of any or all of the
Shares held by it at any time. None of the Reporting Persons has any plans or
proposals which relate to, or could result in, any of the matters referred to in
paragraphs (b) through (j), inclusive, of Item 4 of the Schedule 13D. Subject to
the terms of the Settlement Agreement, each of the Reporting Persons may, at any
time and from time to time, review or reconsider its position and formulate
plans or proposals with respect thereto, but has no present intention of doing
so.
Item 5. Interest in Securities of the Issuer.
(a) Each of the Reporting Parties may be deemed to beneficially own (as
that term is defined in Rule 13d-3 under the Exchange Act), in the aggregate,
5,242,840 Shares representing approximately 27.4% of the Shares outstanding.
(The percentage of Shares reported herein is based upon the 17,136,884 shares of
Common Stock issued and outstanding by the Issuer, such number being the shares
of Common Stock issued and outstanding as of May 9, 2005, as reported on the
Issuer's form 10-Q for the period ended March 31, 2005, 1,643,092 shares of
Common Stock which may be issued upon the conversion of the Preferred Stock held
by SummitBridge LLC, and 385,000 shares of Common Stock which may be issued upon
the exercise of the Warrants held by SummitBridge LLC). Each of Drawbridge LP,
Drawbridge Advisors, Fortress, D.B. Zwirn L.P., DBZCO, DBZ GP, LLC, Zwirn
Holdings, LLC, and Daniel B. Zwirn disclaims any beneficial ownership of the
Shares owned by SummitBridge LLC except to the extent of its pecuniary interests
in such Shares.
(b) Each of the Reporting Parties has sole voting and dispositive power
over 0 Shares. The Shares are subject to an Indiana Statute relating to control
share acquisitions which provides that shares of voting stock of an issuing
public corporation that would otherwise grant the holder thereof in excess of a
20% vote for the election of directors of such corporation will not grant voting
power to such holder unless or until uninterested shareholders of such
corporation vote to grant voting rights to such holder. No vote of shareholders
of the Company has been taken to determine the voting rights of SummitBridge
LLC. Therefore, each of the reporting persons has shared voting power over 0
Shares. Each of the Reporting Persons has shared dispositive power over
5,242,840 Shares.
(c) None of the Reporting Persons has effected any transactions in the
Shares during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
CUSIP No. 655107100 13D Page 16 of 18 Pages
Pursuant to Rule 13d-1(k), the Reporting Persons have entered into an
agreement with respect to the joint filing of this statement and any amendment
or amendments hereto, which was filed as Exhibit 1 to Schedule 13D filed with
the SEC on February 11, 2004 and is incorporated herein by reference.
Pursuant to an assignment agreement, a copy of which is filed as Exhibit 3
to Schedule 13D filed with the SEC on February 11, 2004 (the "Assignment
Agreement"), Provident Bank assigned a warrant, a copy of which was filed as
Exhibit 2 to Schedule 13D filed with the SEC on February 11, 2004 (the
"Warrant") issued by the Company on August 13, 1998, for 385,000 Shares, to
SummitBridge LLC. The Warrant provides an expiration date of December 31, 2001,
but pursuant to a letter from Provident Bank to the Company dated March 21,
2003, a copy of which is filed as Exhibit 4 to Schedule 13D filed with the SEC
on February 11, 2004, (the "Warrant Extension Letter"), the expiration date of
the Warrant was extended to December 31, 2005. The Company takes the position
that the warrants have expired and no longer are exercisable.
The description of the Settlement Agreement set forth in Item 4 hereof is
incorporated herein by reference.
Except as described herein, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 hereof and between such persons and any person with respect to any
securities of the Company, including but not limited to transfer or voting of
any other securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, divisions of profits or
loss, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
The Settlement Agreement is filed herewith as Exhibit 1.
The written agreement relating to joint filing as required by Rule 13d -
1(k) is filed as Exhibit 1 to Schedule 13D filed with the SEC on February 11,
2004, and is incorporated herein by reference.
The Warrant is filed as Exhibit 2 to Schedule 13D filed with the SEC on
February 11, 2004, and is incorporated herein by reference.
The Assignment Agreement is filed as Exhibit 3 to Schedule 13D filed with
the SEC on February 11, 2004, and is incorporated herein by reference.
The Warrant Extension Letter is filed as Exhibit 4 to Schedule 13D filed
with the SEC on February 11, 2004, and is incorporated herein be reference.
CUSIP No. 655107100 13D Page 17 of 18 Pages
SIGNATURES
After reasonable inquiry and to the best of knowledge and belief of the
undersigned, the undersigned certify that the information set forth in this
statement is true, complete and correct.
DATED: August 10, 2005
SUMMITBRIDGE NATIONAL INVESTMENTS LLC
By: /s/ Kevin Treacy
-----------------
Name: Kevin Treacy
Title: Treasurer
DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP
By: DRAWBRIDGE SPECIAL OPPORTUNITIES
ADVISORS LLC,
its advisor
By: /s/ Kevin Treacy
-----------------
Name: Kevin Treacy
Title: Chief Financial Officer
DRAWBRIDGE SPECIAL OPPORTUNITIES
ADVISORS, LLC
By: /s/ Kevin Treacy
------------------
Name: Kevin Treacy
Title: Chief Financial Officer
FORTRESS INVESTMENT GROUP, LLC
By: /s/ Randal A. Nardone
-----------------------
Name: Randal A. Nardone
Title: Chief Operating Officer
D.B. ZWIRN SPECIAL OPPORTUNITIES
FUND, L.P.
By: D.B. ZWIRN PARTNERS, LLC,
its General Partner
By: Zwirn Holdings, LLC,
its Managing Member
By: /s/ Daniel B. Zwirn
---------------------
Name: Daniel B. Zwirn
Title: Managing Member
D.B. ZWIRN & CO., L.P.
By: DBZ GP, LLC
its General Partner
By: Zwirn Holdings, LLC,
its Managing Member
CUSIP No. 655107100 13D Page 18 of 18 Pages
By: /s/ Daniel B. Zwirn
--------------------
Name: Daniel B. Zwirn
Title: Managing Member
DBZ GP, LLC
By: Zwirn Holdings, LLC,
its Managing Member
By: /s/ Daniel B. Zwirn
---------------------
Name: Daniel B. Zwirn
Title: Managing Member
Zwrin Holdings, LLC
By: /s/ Daniel B. Zwirn
---------------------
Name: Daniel B. Zwirn
Title: Managing Member
DANIEL B. ZWIRN
By: /s/ DANIEL B. ZWIRN
---------------------
DANIEL B. ZWIRN
EXHIBIT 1
SETTLEMENT AGREEMENT
--------------------
This Settlement Agreement (the "Agreement") is made and entered into as of
August 1, 2005, by and among Noble Roman's, Inc. ("NRI"), Oak Grove Corp.,
Pizzaco, Inc., LPS, Inc., G.N.R., Inc. and N.R. East, Inc., on behalf of
themselves and each of their officers, directors, employees and shareholders,
including but not limited to Paul W. Mobley and Scott Mobley, and each of their
agents, affiliates, subsidiaries and successors-in-interest, to the extent
legally permissible (NRI and all such related entities and persons are referred
to collectively hereinafter as the "Noble Roman's Parties"), and SummitBridge
National Investments LLC ("SummitBridge"), Drawbridge Special Opportunities Fund
LP and D.B. Zwirn Special Opportunities Fund, L.P., formerly known as
Highbridge/Zwirn Special Opportunities Fund, L.P. (together, the "Funds"), on
behalf of themselves and each of their general partners, limited partners,
members, managers, managing members and the employees, agents, officers,
directors, shareholders, affiliates, subsidiaries and successors-in-interest of
each, to the extent legally permissible, including, but not limited to, Summit
Investment Management LLC (SummitBridge and the Funds and all such related
entities and persons are referred to collectively hereinafter as the
"SummitBridge Parties"), with reference to the following matters now agreed to
as among the Noble Roman's Parties and SummitBridge Parties (collectively, the
"Parties"):
WHEREAS, NRI entered into certain credit agreements and other agreements
with The Provident Bank ("Provident") over a period of years prior to October,
2003, which such agreements culminated in a "Tranche Y Term Loan Promissory
Note" made by NRI on or about April 30, 1999 in favor of Provident for a face
amount of $8,000,000.00 (the "Note") and Provident's ownership of approximately
3,214,748 shares of common stock in NRI acquired by Provident at various times
directly from NRI (the "Common Stock"), $4,929,275 stated amount of no-yield
preferred stock in NRI, convertible into 1,643,092 shares of common stock in
NRI, acquired by Provident on or about February 8, 2000 (the "Preferred Stock")
and a warrant to purchase 385,000 shares of common stock in NRI represented by a
Warrant Certificate issued to Provident by NRI on or about August 13, 1998 (the
"Warrant") ( the Common Stock, Preferred Stock and Warrant are referred
collectively hereinafter as the "Equity Interest");
WHEREAS, Paul W. Mobley, Oak Grove Corporation, Pizzaco, Inc., LPS, Inc.;
G.N.R., Inc. and N.R. East, Inc. (collectively, the "Guarantors") entered into
certain guarantees over a period of years prior to October, 2003 in favor of
Provident with respect to certain obligations of NRI to Provident subject to the
terms and conditions set forth in the respective instruments (the "Guarantees");
WHEREAS, on or about October 17, 2003 SummitBridge acquired the Note and
the Equity Interest from Provident;
WHEREAS, On or about March 12, 2004, NRI filed a "Complaint for Declaratory
Judgment, Money Damages, and Jury Trial" in the Marion County Superior Court in
the State of Indiana against SummitBridge and the Funds, as Cause No.
49D11-0403-PL-00531 (the "Action"), seeking, inter alia, declaratory relief with
respect to the terms and enforceability of the Note and certain aspects of the
Equity Interest, as well as monetary damages;
WHEREAS, SummitBridge appeared in the Action and denied NRI's claims and
concurrently filed a Counterclaim against NRI to enforce the Note and certain
rights attendant to the Equity Interest as well as a Third Party Complaint
seeking to enforce the Note as against the Guarantors;
WHEREAS, NRI dismissed the Funds from the Action, without prejudice, before
an appearance on their behalf was required;
WHEREAS, NRI and SummitBridge subsequently each filed amended pleadings in
the Action asserting claims against one another arising out of certain
communications, events, and relationships with third parties who held
subordinated debentures issued by NRI; and
WHEREAS, the Noble Roman's Parties and the SummitBridge Parties have now
reached a global resolution of their disputes with one another, including the
claims made in the Action by NRI and SummitBridge and related issues arising out
of the Note and the Equity Interest;
NOW THEREFORE, the Parties wish to fully and finally settle their
respective rights and liabilities under the Note and the Equity Interest, to
resolve all claims which were made or could have been made in the Action, to
enter into new agreements as set forth herein governing the relationship between
the Noble Roman's Parties and the SummitBridge Parties, and to otherwise fully
and finally release as set forth herein any and all claims and rights that any
Party has, has had, or may allege or later discover that they have or had,
against the other (excepting those created or expressly excepted by this
Agreement or its attendant documentation), at any time through and including the
date of the entry of the Judgment in the Action described in Paragraph 3 below.
I. TERMS OF AGREEMENT
In consideration of the foregoing recitals, and the terms and provisions
contained herein, and for good and valuable consideration, the Parties agree as
follows:
1. Resolution of the Note and Equity Interest
1.1 GE Financing Commitment
NRI will use commercially reasonable efforts to obtain, by no later than
July 25, 2005, a commitment or letter of understanding for financing for NRI
with GE Franchise Finance Corporation, or another institutional source ("GEFF"),
on terms similar to the former financing commitment letter from GEFF dated
October 4, 2004 (the "GEFF Commitment"), a copy of which is attached hereto as
Exhibit A. This Agreement, and all of the terms, conditions, rights and
obligations of or relating to the Parties hereunder, is expressly contingent
upon NRI obtaining, and closing upon, such financing on terms no less favorable
to it, in its discretion, than the terms set forth in the GEFF Commitment (the
"GEFF Closing"). The Parties agree to use their commercially reasonable efforts
to cause the GEFF Closing to occur at the earliest practicable time but in any
event no later than 11:59 p.m. (Eastern Time) on August 25, 2005. This Agreement
shall terminate and the Parties shall have no further obligations hereunder if
the GEFF Closing shall not have occurred before August 26, 2005. NRI agrees
that, pending the GEFF Closing, NRI will use commercially reasonable efforts to
keep SummitBridge informed of the progress of the GEFF Commitment and GEFF
Closing.
1.2 Payment to SummitBridge
By the close of business on the first business day following the GEFF
Closing, NRI shall cause GE to remit, or shall cause an independent escrow
holder of escrowed funds under the joint control of GE and NRI to remit to one
or more bank accounts designated by SummitBridge the aggregate sum of Eight
Million Three Hundred Thousand Dollars ($8,300.000.00), by wire transfer(s) (the
"Payment"). Wire transfer instructions are set forth in Exhibit B hereto.
1.3 Resolution of the Note and All Related Security Interest(s) and the
Equity Interest
Upon receipt and in consideration of the Payment described in Paragraph
1.2 above, SummitBridge shall execute and deliver to NRI the following
(collectively, the "SummitBridge Deliveries"):
(a) a full release and satisfaction of the Note in the form of the
"Release and Satisfaction of Promissory Note" attached hereto as Exhibit C. By
this Agreement, each of the SummitBridge Parties thereafter hereby relinquish
all of its collective right, title and interest in the Note, including all
rights to principal, interest, fees, costs and attorneys' fees, if any, that
have accrued on or in relation to the Note as of the date of surrender;
(b) any and all documents necessary to release any security interest(s)
held or purported to be held by SummitBridge or any SummitBridge Party with
respect to the Note, including, but not limited to, any such interest created or
provided by that certain Fourth Amendment to Credit Agreement dated as of April
30, 1999 by and between NRI and Provident;
(c) a full release and satisfaction in favor of each of the Guarantors
with respect to the Note and the Guarantees in the form of the "Release of
Guarantors" attached hereto as Exhibit D. By this Agreement, each of the
SummitBridge Parties thereafter hereby relinquishes all of its collective right,
title and interest in the Guarantees;
(d) the original Warrant or an affidavit executed by an appropriate
representative of SummitBridge that the Warrant has been lost or destroyed. By
this Agreement, each of the SummitBridge Parties thereafter hereby relinquishes
all of its collective right, title and interest in the Warrant. SummitBridge
shall cooperate reasonably in the execution of any documentation required by NRI
to cancel the Warrant;
(e) all certificates representing the Preferred Stock, together with
stock powers duly endorsed in blank for transfer to NRI. By this Agreement, each
of the SummitBridge Parties thereafter hereby relinquishes all of its collective
right, title and interest in the Preferred Stock. SummitBridge shall cooperate
reasonably in the execution of any documentation required by NRI to cancel the
Preferred Stock; and
(f) certificates representing a total of Eight Hundred Fourteen
Thousand, Seven Hundred and Forty-Eight (814,748) shares of common stock in NRI
currently owned by SummitBridge (the "Surrendered Shares"), together with stock
powers duly endorsed in blank for transfer to NRI. By this Agreement, each of
the SummitBridge Parties thereafter hereby relinquishes all of its collective
right, title and interest in the Surrendered Shares. SummitBridge shall
cooperate reasonably in the execution of any documentation required by NRI to
cancel the Surrendered Shares. It is the further intent of the Parties that,
following relinquishment of the Surrendered Shares, SummitBridge shall retain
record ownership of a total of Two Million Four Hundred Thousand (2,400,000)
shares of common stock in NRI (the "Retained Common Stock"). NRI shall use
commercially reasonable efforts to confirm SummitBridge's ownership of the
Retained Common Stock, including but not limited to issuance of new stock
certificates evidencing such shares. Such stock certificates may bear legends,
in the form of the exemplar legend attached hereto as Exhibit E, evidencing the
restrictions referred to in this Agreement.
2. Closing
The closing of the transactions contemplated by Paragraphs 1.2 and 1.3 (the
"Closing") shall occur no later than the close of business (Standard Time) on
the first business day immediately following the GEFF Closing and shall occur at
the offices of Bose McKinney & Evans LLP, 2700 First Indiana Plaza, 135 North
Pennsylvania Street, Indianapolis, Indiana or at such other time and place as is
mutually agreed to by the SummitBridge and NRI.
3. Dismissal of the Action
In consideration of the Payment and the SummitBridge Deliveries, NRI,
SummitBridge and the Guarantors each agree to have their counsel of record in
the Action execute and submit, immediately after the GEFF Closing, for signature
and filing, to the Marion County Superior Court, the "[Proposed] Stipulated
Judgment and Dismissal With Prejudice" attached to this Agreement as Exhibit F
for entry by the Court. The purposes of the Stipulated Judgment are to: (a)
obtain a judicial declaration by the Court that SummitBridge is not an
"interested shareholder" of NRI within the meaning of the Indiana Business
Combination Law (I.C. Sec. 23-1-43 et seq.), arising out of or with respect to:
(i) this Agreement; and/or (ii) SummitBridge's direct, or indirect beneficial,
ownership of the portion of the Stock Interest consisting of the 2,400,000
shares of common stock (or any part thereof) in NRI that will continue to be
held by SummitBridge immediately after the GEFF Closing; (b) obtain a judicial
declaration by the Court that the SummitBridge is and will remain subject to the
provisions of Indiana Control Share Acquisition Law (I.C.Sec. 23-1-42 et seq.)
with respect to its rights as a holder of all or any portion of the Retained
Common Stock and has, no voting rights in respect of the Retained Common Stock
unless and until such rights are granted in the future pursuant to a shareholder
resolution adopted in accordance with the terms of the Control Share Acquisition
Law; (c) dismiss with prejudice all remaining claims raised in the Action; and
(d) provide that the Noble Roman's Parties, including the Guarantors, and the
SummitBridge Parties, including the Funds, shall each bear their own litigation
costs and attorneys' fees associated in any way with the action.
4. Releases
4.1 Release of SummitBridge Parties by Noble Roman's Parties
In consideration of the SummitBridge Deliveries, each of the Noble
Roman's Parties hereby releases and discharges the SummitBridge Parties from any
and all claims, demands, debts, obligations, liabilities, costs, expenses,
rights of action, causes of action, awards and judgments of any kind or
character whatsoever, whether known or unknown, suspected or unsuspected,
whether currently existing or arising in the future, arising out of or relating
to any claim or matter asserted, or which could have been asserted, in the
Action (the "Noble Roman's Released Claims"). The Noble Roman's Parties
acknowledge and agree that the Noble Roman's Released Claims may include claims
of every nature and kind whatsoever against the SummitBridge Parties, whether
known or unknown, suspected or unsuspected, and further acknowledges that such
claims may be presently unknown or unsuspected, and may be based upon hereafter
discovered facts different from, or in addition to, those which the Noble
Roman's Parties now know, or believe to be true. Nevertheless, the Noble Roman's
Parties agree that the foregoing release shall be and remain effective in all
respects, notwithstanding such different or additional facts, or the discovery
thereof. The sole exception to this general release by the Noble Roman's Parties
shall be any claim(s) arising out of: (a) this Agreement or the Noble Roman's
Parties' rights hereunder; and/or (b) any document required to be executed, or
any act required to be taken, by the SummitBridge Parties in order to carry out
this Agreement.
4.2 Release of Noble Roman's Parties by SummitBridge Parties
In consideration of the Payment, each of the SummitBridge Parties
hereby releases and discharges the Noble Roman's Parties from any and all
claims, demands, debts, obligations, liabilities, costs, expenses, rights of
action, causes of action, awards and judgments of any kind or character
whatsoever, whether known or unknown, suspected or unsuspected, whether
currently existing or arising in the future, arising out of or relating to any
claim or matter asserted, or which could have been asserted, in the Action (the
"SummitBridge Released Claims"). The SummitBridge Parties acknowledge and agree
that the SummitBridge Released Claims may include claims of every nature and
kind whatsoever against the Noble Roman's Parties, whether known or unknown,
suspected or unsuspected, and further acknowledges that such claims may be
presently unknown or unsuspected, and may be based upon hereafter discovered
facts different from, or in addition to, those which the SummitBridge Parties
now know, or believe to be true. Nevertheless, the SummitBridge Parties agree
that the foregoing release shall be and remain effective in all respects,
notwithstanding such different or additional facts, or the discovery thereof.
The sole exception to this general release by the SummitBridge Parties shall be
any claim(s) arising out of: (a) this Agreement or the SummitBridge Parties'
rights hereunder; (b) any document required to be executed, or any act required
to be taken, by the Noble Roman's Parties in order to carry out this Agreement;
and/or (c) the SummitBridge Parties' rights with respect to the Retained Common
Stock, subject to the applicability of the Indiana Control Share Acquisition Law
as described in Paragraph 3(b).
5. Indemnification
5.1 Indemnification of SummitBridge Parties by NRI
From and after Closing, NRI shall indemnify and hold harmless the
SummitBridge Parties from any cost, liability, damage or loss, including all
reasonable costs and attorney's fees incurred in connection therewith, incurred
directly or indirectly by reason of a claim, demand, debt, obligation,
liability, cost, expense, right of action, cause of action, award or judgment
against the SummitBridge Parties arising out of or relating to any future claim
raised by the Noble Roman's Parties that asserts or purports to assert, in whole
or in part, any of the Noble Roman's Released Claims.
5.2 Indemnification of Noble Roman's Parties by SummitBridge
From and after the Closing, SummitBridge shall indemnify and hold
harmless the Noble Roman's Parties from any cost, liability, damage or loss,
including all reasonable costs and attorney's fees incurred in connection
therewith, incurred directly or indirectly by reason of a claim, demand, debt,
obligation, liability, cost, expense, right of action, cause of action, award or
judgment against the Noble Roman's Parties arising out of or relating to any
future claim raised by the SummitBridge Parties that asserts or purports to
assert, in whole or in part, any of the SummitBridge Released Claims.
6. Representations and Warranties Regarding the Action
6.1 No Admission of Liability
The provisions of this Agreement relating to the Action pertain to
disputed claims and do not constitute in any way an admission by any of the
Parties of liability or of the validity of any of the claims or matters alleged
in the Action. Execution of this Agreement does not constitute evidence of, and
shall not be construed to be, an admission of liability and/or wrongdoing by any
of the Parties.
6.2 No Other Actions Filed
Each of the Parties represents that, other than the Action, no
litigation against any other Party, related in any manner to the Noble Roman's
Released Claims or the SummitBridge Released Claims, has been filed, and that
none will be filed by or on behalf of any of the Parties at any time hereafter.
6.3 Warranty of No Assignment
The Parties each represent and warrant that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any person, firm
or corporation whatsoever any claim, debt, liability, demand, obligation, cost,
expense, action or causes of action covered by this Agreement, and each of the
Parties acknowledges and agrees that this warranty and representation is an
essential and material term of this Agreement without which none of the
consideration received in connection herewith would have been made or delivered.
The foregoing warranty and representation shall survive the delivery of this
Agreement, and each of the Parties shall indemnify, defend and hold the others
harmless from any claims, demands or actions which have been assigned or
transferred, or purported to have been assigned or transferred, in violation of
the foregoing representation and warranty.
6.4 Factual Differences
Each of the Parties understands and accepts the risk that the facts with
respect to which this Agreement is entered into may be different from the facts
now known or believed by each Party to be true. The Parties agree that this
Agreement shall remain in all respects effective and shall not be subject to
termination or rescission by virtue of any such differences in fact.
7. [Reserved]
8. Initial Offering and Sale Conditions for the Retained Common Stock
8.1 Initial Right to Locate Qualified Buyer(s)
From and after the Closing, NRI and Paul W. Mobley ("Mobley") will use
commercially reasonable efforts to assist SummitBridge in finding one or more
buyers to purchase some or all of the Retained Common Stock, under the following
conditions:
(a) If the sale is a transaction exempt under the so-called "4-1/2"
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), NRI will have a reasonable belief that the
buyer(s) is an accredited investor within the meaning of Regulation D under the
Securities Act, who is willing, and financially able, as represented in a
written commitment letter executed by the prospective buyer(s), containing
customary representations, to purchase such common stock in NRI pursuant to a
private sale not subject to registration with The Securities and Exchange
Commission (the "SEC") under the Securities Act.
(b) SummitBridge will sell all shares of the Retained Common Stock to
any such buyer(s) identified by NRI and/or Mobley for an average price that
equals or exceeds the greater of: (i) $1.10 per share; or (ii) ninety percent
(90%) of the closing transaction price for NRI shares published for the trading
day prior to the date of purchase on which trades are reported; provided,
however, that at no time shall this Agreement be construed to require
SummitBridge to consent to the sale of any of the Retained Common Stock by or
with the assistance of NRI and/or Mobley if the proposed per share price of such
a sale would, if executed, cause the average price of the aggregate amount of
all shares of Retained Common Stock sold, as measured on the date immediately
following any such proposed sale, to be less than the greater of $1.10 per share
or ninety percent (90%) of the transaction price for NRI shares published for
the trading day prior to the date of each of the prior sales of such shares; and
(c) NRI and Mobley are entitled and agree to, continue their efforts to
locate such buyer(s) for a minimum period of one hundred eighty (180) days from
the Closing (the "Initial Sale Period"). If at the end of the Initial Sale
Period, SummitBridge holds more than a total of One Million Two Hundred Thousand
(1,200,000) shares of the Retained Common Stock, then NRI's and Mobley's rights
and obligations under this Paragraph 8.1 shall cease. If, however, at the end of
the Initial Sale Period, SummitBridge holds less than a total of One Million Two
Hundred Thousand (1,200,000) shares of the Retained Common Stock, then NRI and
Mobley are entitled and agree to, continue their use their commercially
reasonable efforts to locate one or more buyer(s) of some or all of the
remaining Retained Common Stock, under the same conditions as set forth herein,
for one additional ninety (90) day period (the "Added Sale Period"). In no event
shall NRI's or Mobley's rights and obligations under this Paragraph extend
beyond two hundred seventy (270) days from the date of Closing.
(d) NRI agrees to indemnify the SummitBridge Parties against all losses,
claims, damages, liabilities and expenses (collectively "claims") arising out of
or relating to the offer or sale of any Retained Shares by or with the
assistance of NRI and/or Mobley pursuant to this Section 8.1, including without
limitation, claims based upon any untrue or alleged untrue statement of material
fact made by NRI and/or Mobley in connection with such offer or sale or any
omission or alleged omission of a material fact required to be stated or
necessary to make the statements made not misleading, and shall reimburse the
SummitBridge Parties for any legal or other expenses reasonably incurred by such
person in connection with the investigation or defense of such claims, except
insofar as the same are caused by or contained in any information furnished in
writing to NRI and/or Mobley by the SummitBridge Parties expressly for use in
connection with such offer or sale. Notwithstanding the foregoing to the
contrary, NRI shall have no obligation under this Paragraph 8.1(d) in respect of
any claim arising out of any untrue statement or omission of material fact in
any communication to any offeree or buyer that NRI establishes was first made by
any of the SummitBridge Parties without authorization by NRI, Mobley and/or
their agents.
8.2 SummitBridge Parties Stand Still Period
8.2.1 Duration
During the period(s) in which NRI and Mobley are performing their
obligations as required under the provisions of Paragraph 8.1 above within the
Initial Sale Period or, if triggered, the Added Sale Period, SummitBridge agrees
that it will not sell, offer to sell or place an order to sell any NRI common
stock in open market transactions without NRI's prior written consent (the
"Stand Still Period"). The Stand Still Period shall terminate on the earlier of:
(a) The date on which NRI's and Mobley's obligations under Paragraph 8.1
above expire;
(b) The expiration of the Initial Sale Period if SummitBridge then holds
a total of 1,200,000 or more shares of the Retained Common Stock; or
(c) The expiration of the Added Sale Period.
8.2.2 Premium Sales and Referrals during Stand Still Period
Nothing in this Agreement shall preclude SummitBridge Investments from:
(a) Selling all or any portion of the Retained Common Shares during the
Stand Still Period to any buyer(s) who offers to purchase such shares at a price
in excess of that required by Paragraph 8.1(b) above; or
(b) Referring a prospective purchaser of some or all of the Retained
Common Stock to NRI or Mobley during the Stand Still Period.
9. Restoration of Voting Rights in Retained Common Stock after Stand Still
Period
If, at the expiration of the Stand Still Period, SummitBridge continues to
own, directly or beneficially, any portion of the Retained Common Stock, NRI,
Mobley and Scott Mobley agree to use their collective commercially reasonable
efforts to cause the then-holders of NRI's voting common stock to vote, in
accordance with the provisions of the Indiana Control Share Acquisition Law, to
restore to all shares of common stock in NRI still owned by SummitBridge full
voting rights permitted generally to the holders of NRI's common stock under
Indiana law and NRI's Articles of Incorporation and Bylaws. Mobley and Scott
Mobley agree to vote all shares owned by them, directly or beneficially, or the
voting rights of which they control, by agreement or proxy, in favor of such
restoration of common stock voting rights to SummitBridge.
10. Right to Appoint Board Observer After Initial Sale Period
If, at the end of the Initial Sale Period described in Paragraph 8.1 above,
SummitBridge holds at least 1,200,000 shares of the Retained Common Stock, NRI
shall immediately take all steps necessary to provide for the appointment of,
and shall immediately grant and permit SummitBridge the sole right to appoint
either: (a) any one of Robert Ekback, Steven Petrie, Raymond Chan, Josh Pack or
Robert Omer in SummitBridge's sole discretion; or, alternatively, (b) any other
person, whose appointment is subject to the commercially reasonable consent of
NRI, to hold the seat of a single observer to the Board of Directors of NRI (the
"Observer Seat"). Subject to the execution of a confidentiality agreement in the
form of the agreement attached hereto as Exhibit G and to NRI's right to
withhold communications that create an unreasonable risk, in the opinion of
NRI's outside legal counsel, of waiving the attorney-client privilege, the
holder of the Observer Seat shall be entitled to all notices of meetings of the
NRI Board of Directors, shall receive and have access to the same records and
information provided to elected members of the NRI Board of Directors and shall
be entitled to actively participate in (but not vote at) any meetings or actions
of the NRI Board of Directors. The Observer Seat, and SummitBridge's sole right
to appoint the holder of the Observer Seat, shall remain effective for so long a
period in which SummitBridge owns, directly or beneficially, seven hundred fifty
thousand (750,000) or more shares of the Retained Common Stock.
11. Stock Registration Rights of SummitBridge
Commencing on the expiration of the Stand Still Period, and ending at 11:59
p.m. (Eastern Standard Time) on October 31, 2006 (the "Registration Period"),
SummitBridge shall be entitled to one demand registration right, as provided in
the form of "Registration Rights Agreement" attached hereto as Exhibit H, to
cause NRI to register under the Securities Act, the resale of all shares of
Retained Common Stock held as of the commencement of the Registration Period in
an underwritten public offering and/or in market transactions, at the sole
election of SummitBridge. The Registration Rights Agreement may only be invoked
by SummitBridge only in the event that the shares of Retained Common Stock then
directly owned by SummitBridge represent five percent (5%) or more of the then
outstanding shares of common stock in NRI.
12. Forbearance by SummitBridge Parties from Unapproved Stock Transactions
or Contests
SummitBridge and each of the Funds agree that, for a period of two (2)
years from the Closing they shall not engage in, solicit or participate in any
proxy contest or tender offer involving NRI's common stock, except as expressly
provided for in this Agreement or as specifically approved by NRI's Board of
Directors.
13. General Provisions and Covenants
13.1 Binding on Successors
This Agreement shall inure to the benefit of and shall bind the Parties
hereto and their respective representatives, heirs, executors, administrators,
successors, families, employees, officers, directors, shareholders, agents and
assigns, to the extent legally permissible.
13.2 Further Documentation
Each of the Parties hereto shall do all acts and execute all documents
necessary or reasonably convenient to effectuate the terms and provisions of
this Agreement.
13.3 Final Agreement
This Agreement supersedes all prior negotiations and understandings of
any kind with respect to the subject matter hereof, and contains all of the
terms and provisions of the Agreement among the Parties hereto with respect to
the subject matter hereof. There are no oral representations, understandings,
statements or stipulations of any kind or character made by any of the Parties
bearing upon the effect of this Agreement to induce execution of this Agreement,
or otherwise, which have not been incorporated herein.
13.4 Governing Law
This Agreement is made under and shall be governed by and construed in
accordance with the laws of the State of Indiana.
13.5 Severability Provision
If any provision of this Agreement is unenforceable, for any reason, the
remaining provisions shall nevertheless be of full force and effect.
13.6 Attorneys' Fees
The Parties hereto agree to bear their own respective attorneys' fees
and costs incurred prior to the date this Agreement is fully executed. In the
event of any controversy, claim or dispute following the date this Agreement is
finally executed, in connection with or relating to this Agreement, or the
subject matter hereof, the prevailing Party shall be entitled to recover all
costs and expenses (including, but not limited to, reasonable attorneys' fees)
incurred by the prevailing Party in connection therewith.
13.7 Modification
This Agreement may be modified only by a subsequent writing, signed by
both NRI and SummitBridge or, with respect to any other Party, by the Party to
be charged thereunder.
13.8 Headings
The paragraph headings of this Agreement are provided for the ease of
reference only and shall have no effect on its interpretation.
13.9 Agreement Mutually Negotiated
This Agreement has been negotiated between the Parties and has been
thoroughly reviewed by each party. Each party has had an opportunity to make
such changes as that party wished to make and each has had the opportunity to
have their counsel review and comment upon the Agreement and each provision
thereof. This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against any of the Parties hereto.
Accordingly, the parties agree that for purposes of interpreting this Agreement,
neither Party shall be deemed to have drafted this Agreement and each Party
waives any rule of contract construction which provides that ambiguities in the
contract shall be construed against the Party who drafted the Agreement or
otherwise caused the ambiguity to exist.
13.10 Warranty of Authority
Each corporation executing this Agreement represents that this Agreement
has been executed and delivered by a duly appointed executive officer of the
corporation pursuant to a resolution adopted by the Board of Directors of the
corporation. Each partnership, limited partnership or limited liability company
executing this Agreement represents that this Agreement has been executed and
delivered by a duly appointed managing member, managing agent or partner, as the
case may be.
13.11 Representation by Counsel
The Parties hereto affirmatively represent that they have been
represented, or have had the opportunity to be represented, throughout the
negotiation of this Agreement by attorneys of their own choosing. The Parties
each further represent that such attorneys have adequately explained to them the
terms and conditions of this Agreement, and the legal ramifications and
consequences thereof. To the extent any Party(ies) has/have not consulted with
an attorney or consultant of their choice, they have done so voluntarily, of
their own free will and accord, and not as a result of any undue coercion or
persuasion from any other Party.
13.12 Knowing and Voluntary Agreement
The Parties each represent that they (or their undersigned
representative) have carefully read this Agreement and that they fully
understand the contents and legal effect thereof. The Parties each further
affirmatively represent they have discussed, or have had an opportunity to
discuss, with attorneys or advisors of their choice, each of the terms and
conditions of this Agreement, and that they understand and agree to each such
term and condition.
13.13 No Reliance on Any Other Party
The Parties each expressly represent that they have not relied upon any
statements or representations made by any other Party to this Agreement, or
by the representative, agent, or attorneys of any Party to this Agreement,
other than with respect to such statements and representations which are
expressly set forth in this Agreement.
13.14 Notices
Any notices required or made pursuant to this Agreement or its attendant
requirements shall be made as follows:
(a) If to Noble Roman's: Paul W. Mobley
Chairman and CEO
Noble Roman's, Inc.
One Virginia Avenue, Suite 800
Indianapolis, IN 46204
With copies to: Thomas A. Litz, Esq.
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1611
and to:
Jeffrey A. Gaither, Esq.
Bose McKinney & Evans LLP
2700 First Indiana Plaza
135 North Pennsylvania Avenue
Indianapolis, IN 46204
(b) If to the SummitBridge Parties: Senior Asset Manager
Summit National Investments LLC
Wells Fargo Building, Suite 2150
1700 Lincoln Street
Denver CO 80203
With copies to:
Jack R. Nelson, Esq.
Reed Smith LLP
1999 Harrison Street, Suite 2400
Oakland, CA 94612
and to: Jonathan G. Polak
Dann Pecar Newman & Kleiman,P.C.
2300 One American Square
Box 82008
Indianapolis, IN 46282
13.15 Counterparts
This Agreement may be executed in separate counterparts and shall become
effective only after all such separate counterparts have been executed and
exchanged between the Parties. Facsimile signatures shall be sufficient provided
they are subsequently supplemented by the originals thereof.
DATED: August 1, 2005 Noble Roman's, Inc.
By: /s/ Paul W. Mobley
--------------------
Paul W. Mobley
Chairman and Chief
Executive Officer
DATED: August 1, 2005 /s/ Paul W. Mobley
--------------------
Paul W. Mobley
DATED: August 1, 2005 /s/ A. Scott Mobley
-------------------
A. Scott Mobley
DATED: August 1, 2005 Oak Grove Corporation
By: /s/Paul W. Mobley
-----------------
Paul W. Mobley
DATED: August 1, 2005 Pizzaco, Inc.
By /s/ Paul W. Mobley
--------------------
Paul W. Mobley
DATED: August 1, 2005 LPS, Inc.
By /s/Paul W. Mobley
-------------------
Paul W. Mobley
DATED: August 1, 2005 G.N.R,Inc.
By /s/Paul W. Mobley
--------------------
Paul W. Mobley
DATED: August 1, 2005 N.R East, Inc.
By /s/ Paul W. Mobley
---------------------
Paul W. Mobley
APPROVED AS TO FORM:
DATED: August 1, 2005 Thompson Coburn LLP
By /s/ Thomas A. Litz, Esq
------------------------
Thomas A. Litz, Esq
DATED: July 26, 2005 Bose McKinney & Evans LLP
By /s/Jeffrey A. Gaither Esq.
--------------------------
Jeffrey A. Gaither Esq.
Attorneys for Noble Roman's,Inc.,
Paul W. Mobley, Scott Mobley,
Oak Grove Corporation,
Pizzaco, Inc., LPS, Inc.
G.N.R., Inc. and N.R. East, Inc.
DATED: July 29, 2005 SummitBridge National Investments LLC
By /s/ CONSTANTINE DAKOLIAS
------------------------
CONSTANTINE DAKOLIAS
Authorized Signatory
DATED: July 29, 2005 Drawbridge Special Oportunities Fund LP
By /s/ CONSTANTINE DAKOLIAS
------------------------
CONSTANTINE DAKOLIAS
Chief Credit Officer
DATED: July 29, 2005 D.B. Zwirn Special Opportunities
Fund, L.P.
By: D.B. Zwirn & Co., L.P.
By /s/ David Proshan
------------------
David Proshan
Its: General Counsel
APPROVED AS TO FORM:
DATED: July 27, 2005 Reed Smith LLP
By: /s/ Jack R. Nelson, Esq
--------------------------
Jack R. Nelson, Esq
DATED: July 26, 2005 Dann Pecar Newman & Kleiman, PC
By: /s/ Jonathan G. Polak, Esq.
------------------------------
Jonathan G. Polak, Esq.
Attorneys for SummitBridge National
Investments LLC, Drawbridge Special
Opportunities Fund LP and D.B.
Zwirn Special
Opportunities Fund, L.P.
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of July __, 2005 by and among Noble Roman's, Inc., an Indiana
corporation (the "Company"), and SummitBridge National Investments, LLC, a
Delaware limited liability company (the "Investor"). Capitalized terms used
herein but not otherwise defined shall have the meanings ascribed to such terms
in Section 1.
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Common Stock" means, collectively, (i) the Common Stock of the Company,
and (ii) any other equity securities of the Company issued or issuable with
respect to the Common Stock described in the preceding clause (i) by way of a
stock dividend or stock split or in connection with a combination of stock,
recapitalization, merger, consolidation or other reorganization.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity (or any department, agency or political subdivision thereof).
"Registrable Securities" means 2,400,000 shares of Common Stock owned by
the Investor (plus any shares of Common Stock acquired by, or issued or issuable
to the Investor in respect of such Common Stock) or any other Person who becomes
a holder of such Common Stock and to whom registration rights under this
Agreement are assigned pursuant to Section 10(d) below. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire directly or indirectly such
Registrable Securities (in connection with a transfer of securities or
otherwise), whether or not such acquisition has actually been effected. Such
Common Stock will cease to be Registrable Securities when sold (i) pursuant to a
registration statement under the Securities Act, or (ii) in a transaction
pursuant to Rule 144.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses
and fees and disbursements of counsel and independent certified public
accountants for the Company, but specifically excluding any fees or expenses of
underwriters or counsel for the holders of any Registrable Securities.
"Registration Period" means the period beginning on the later of (i)
October 31, 2005 and (ii) the expiration of the "Stand Still Period," as such
term is defined in that certain Settlement Agreement dated as of July __, 2005,
by and among the Company, the Investor and certain parties related to them, and
ending on October 31, 2006.
"Rule 144" means Rule 144 under the Securities Act (or any similar rule
then in force).
EXHIBIT H
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
2. Demand Registrations.
(a) Requests for Registration. Subject to the provisions of this Section 2,
at any time during the Registration Period, the holders of a majority of the
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on such form as may be
appropriate, which may be a Form S-1 or any similar long-form registration or a
Form S-3 or any similar short-form registration, if available. All registrations
requested pursuant to this Section 2(a) are referred to herein as "Demand
Registrations". Each request for a Demand Registration shall specify the number
of Registrable Securities requested to be registered, the anticipated method or
methods of distribution (which may be a shelf registration for open market or
privately negotiated transactions, an underwritten public offering or other
manner of distribution) and the anticipated per share price range for such
offering.
(b) Limitations on Demand Registrations. The holder(s) of the Registrable
Securities will be entitled to request one (1) Demand Registration, for which
the Company will pay all Registration Expenses. A registration will not count as
the permitted Demand Registration until it has become effective and remained
effective for at least 90 days (including any period during which a
post-effective amendment is effective), except that if the registration
statement relates to open market and privately negotiated transactions (and does
not provide for an underwritten offering), the registration statement shall have
remained effective for at least 180 days; provided, however, that the holders of
Registrable Securities making a request for a Demand Registration hereunder may
withdraw from such registration at any time prior to the effective date of such
Demand Registration, in which case such request will count as a Demand
Registration for such holder, irrespective of whether or not such registration
is effected, unless the requesting holder(s) reimburse the Company for all
expenses incurred in connection with such withdrawn registration.
(c) Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of a majority of the Registrable
Securities included in such registration. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration, (i) first, the number
of Registrable Securities requested to be included in such registration by the
holders of Registrable Securities, pro rata among the holders of such
Registrable Securities on the basis of the number of Registrable Securities
owned by each such holder, and (ii) second, any other securities of the Company
requested to be included in such registration, pro rata among the respective
holders thereof on the basis of the number of shares owned by each such holder.
(d) Selection of Underwriters. In the case of a Demand Registration, the
holders of a majority of the Registrable Securities will have the right to
select the investment banker(s) and manager(s) to administer the offering,
subject to the approval of the Company which shall not be unreasonably withheld.
(e) Other Registration Rights. Except as provided in this Agreement, prior
to the expiration of the Registration Period, the Company will not grant to any
Persons the right to request the Company to register any equity securities of
the Company, without the prior written consent of a majority of the holders of
the Registrable Securities.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the date of the final prospectus relating to any Demand
Registration (except as part of such registration), unless the underwriters
managing the registered public offering otherwise agree to a shorter period.
(b) The Company (i) will not effect any sale or distribution of equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and during the 180-day
period beginning on the effective date of any underwritten Demand Registration
(except as part of such underwritten registration), unless the underwriters
managing the registered offering otherwise agree, and (ii) will use commercially
reasonable efforts to cause each of its directors, officer and holders of more
than 5.0% of the Company's outstanding Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock to agree not to
effect any sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such offering, if
otherwise permitted), unless the underwriters managing such offering otherwise
agree. Notwithstanding the foregoing, the Company may at any time grant stock
options and issue shares of common stock upon the exercise of presently
outstanding stock options or options granted after the date hereof.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its commercially reasonable efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
will as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement with respect to such Registrable Securities and
use its commercially reasonable efforts to cause such registration statement to
become effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish to
one counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed and provide such counsel with an opportunity to comment on such
documents);
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for such period which
will terminate upon the earlier to occur of such time when all Registrable
Securities covered by the registration statement have been sold or the
registration statement has been effective for 90 days (provided, however, that
such 90 day period shall be 180 days if the registration statement relates to
open market and privately negotiated transactions and does not provide for an
underwritten offering), and to otherwise comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process (i.e., service of
process which is not limited solely to securities law matters) in any such
jurisdiction, or (iv) incur unreasonable effort or expense);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company will promptly prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange or nationally recognized quotation system on which similar securities
issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements
in customary form) and take all such other actions as the holders of a majority
of the Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, preparing and participating in
customary and reasonable "road show" presentations to institutional investors);
(i) make available at reasonable times for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement,
subject to the applicable person(s) executing a nondisclosure agreement in
reasonable form and substance if reasonably required by the Company;
(j) otherwise comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders,
as soon as reasonably practicable, an earning statement covering the period of
at least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and consider the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) use best efforts to prevent the issuance of any stop order ("Stop
Order") suspending the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related prospectus or suspending
the qualification of any securities included in such registration statement for
sale in any jurisdiction, and, in the event of such issuance, the Company shall
immediately notify the holders of Registrable Securities included in such
registration statement of the receipt by the Company of such notification and
shall use its best efforts promptly to obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities; and
(n) obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the holders of a majority of the
Registrable Securities being sold reasonably request.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the reference
to such holder; provided, that with respect to this clause (ii) such holder
shall furnish to the Company a written opinion of counsel to such effect, which
opinion and counsel shall be reasonably satisfactory to the Company.
5. Registration Expenses. All Registration Expenses will be borne by the
Company. The holders of Registrable Securities shall bear all expenses incurred
by them in connection with any offer or sale of the Registrable Securities.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, each
holder of Registrable Securities, its partners, members, officers and directors
and each Person who controls such holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse such holder, partner,
member, director, officer or controlling person for any legal or other expenses
reasonably incurred by such holder, partner, member, director, officer or
controlling person in connection with the investigation or defense of such loss,
claim, damage, liability or expense, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will (i) indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) or who signs a registration statement filed
pursuant hereto, against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact relating
to such holder and provided by such holder to the Company or the Company's agent
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in, or based upon, any information or
affidavit so furnished in writing by such holder or such holder's
representative; provided, that the obligation to indemnify will be individual to
each holder and will be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement, and (ii) reimburse the Company, its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act) for
any legal or other expenses reasonably incurred by such Persons in connection
with the investigation or defense of such loss, claim, damage, liability or
expense, except insofar as the same are caused by or contained in any
information furnished to such holder of Registrable Securities expressly for use
therein. In connection with an underwritten offering in which a holder of
Registrable Securities is participating, each such holder will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Company, its directors
and officers and each Person who controls the Company (within the meaning of the
Securities Act) or who signs the registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that failure to give such notice shall not
affect the right of such Person to indemnification hereunder unless such failure
is prejudicial to the indemnifying party's ability to defend such claim) and
(ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company and
each holder also agree to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event the
indemnification provided for herein is unavailable for any reason.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with an underwritten public offering conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
7. Holders' Obligations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangement approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all customary questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements; provided, that no holder of Registrable
Securities included in any underwritten registration shall be required to make
any representations or warranties to the Company or the underwriters other than
representations and warranties regarding such holder and such holder's intended
method of distribution.
(b) Upon receipt of notification described in Section 4(e), the holder(s)
participating in an offering shall immediately cease offering or selling any
Registrable Securities and shall not resume such offers or sales until the
Company consents thereto and, thereafter, any offers or sales will be made only
by means of an amended or supplemented prospectus furnished by the Company.
8. Rule 144 Reporting. With a view to making available to the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use commercially reasonable efforts to:
(a) make and keep current public information available, within the meaning
of Rule 144 or any similar or analogous rule promulgated under the Securities
Act, at all times after it has become subject to the reporting requirements of
the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other documents
required of the Company under the Securities Act and Exchange Act; and
(c) so long as any party hereto owns any Registrable Securities which may
not be resold under Rule 144(k), furnish to such Person forthwith upon request,
a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144, the Securities Act and the Exchange Act; a copy
of the most recent annual or quarterly report of the Company; and such other
reports and documents as such Person may reasonably request in availing itself
of any rule or regulation of the SEC allowing it to sell any such Registrable
Securities without registration.
9. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, sent
via a nationally recognized overnight courier or sent via facsimile to the
recipient. Such notices, demands and other communications will be sent to the
address indicated below:
If to the Company:
Noble Roman's Inc.
One Virginia Avenue, Suite 800
Indianapolis, Indiana 46204
Attention: President
With a copy to:
Thomas A. Litz, Esq.
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1611
If to Investor:
Senior Asset Manager
Summit National Investments LLC
Well Fargo Building, Suite 2150
Denver, CO 80203
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party.
10. Miscellaneous.
(a) No Inconsistent Agreements. Prior to the end of the Registration
Period, the Company will not enter into any agreement which is inconsistent with
or violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of at least a majority of the
Registrable Securities; provided that no amendment or waiver shall materially
and adversely affect the rights hereunder of any of the parties hereto when
compared with its effect on the other similarly-situated parties hereto without
the prior written approval of such materially and adversely affected party.
(d) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. Notwithstanding the foregoing to the contrary, the provisions
of this Agreement which are for the benefit of purchasers or holders of
Registrable Securities may be assigned to one or more subsequent holders of
Registrable Securities only if: (i) such assignee acquires at least 480,000
shares of Registrable Securities; and (ii) and the Company receives written
notice of such assignment, including the name and address of the assignee,
within 30 days thereof.
(e) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(g) Governing law. All questions concerning the construction, validity and
interpretation of this agreement shall be governed by and construed in
accordance with the domestic laws of the State of Indiana, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Indiana or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Indiana.
(h) Time is of the Essence; Computation of Time. Time is of the essence for
each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge of any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which banks in New York, New York are
authorized to be closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular business day.
(i) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(j) Termination. This Agreement shall terminate at such time as neither the
Investor nor any Person who holds Registrable Securities as a transferee of
Investor (or as a transferee of any transferee) holds five percent (5.0%) or
more than of the common stock of the Company outstanding, based on the Company's
most recent periodic report filed under the Exchange Act.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
NOBLE ROMAN'S, INC.
By: ________________________________
Name: ________________________________
Title:________________________________
SUMMITBRIDGE NATIONAL INVESTMENTS LLC
By: ________________________________
Name: ________________________________
Title:________________________________