UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
SCHEDULE 13D/A
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(A)
(AMENDMENT NO. 13)
FOG CUTTER CAPITAL GROUP INC.
(Name of Issuer)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
971892104
(CUSIP Number)
Andrew A. Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, Oregon 97201
(503) 721-6500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 8, 2004
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ].
NOTE: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7 for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 11 Pages)
CUSIP No. 971892104 13D/A Page 2 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Andrew A.Wiederhorn
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
PF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0 (See Responses to Items 4 and 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
2,862,111 (See Responses to Items 4 and 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0 (See Responses to Items 4 and 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
2,862,111 (See Responses to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,862,111
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.8% (See Responses to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
2
CUSIP No. 971892104 13D/A Page 3 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiffany Wiederhorn
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
PF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0 (See Responses to Items 4 and 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
2,862,111 (See Responses to Items 4 and 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0 (See Responses to Items 4 and 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
2,862,111 (See Responses to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,862,111
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.8% (See Responses to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
3
CUSIP No. 971892104 13D/A Page 4 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TTMM, L.P.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
991,709
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 991,709
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
991,709
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8% (See Responses to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
4
CUSIP No. 971892104 13D/A Page 5 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WM Starlight Investments, LLC
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
N/A
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
13,826
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 13,826
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,826
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2% (See Responses to Items 4 and 5)
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
5
This Amendment No. 13 (this "Amendment") amends and supplements the
Schedule 13D originally filed on April 1, 1999, (the "Schedule 13D"), as amended
by Amendment No. 1 to the Schedule 13D filed on May 17, 1999 ("Amendment No.
1"), Amendment No. 2 to the Schedule 13D filed on December 20, 1999 ("Amendment
No. 2"), Amendment No. 3 to the Schedule 13D filed on October 17, 2001
("Amendment No. 3"), Amendment No. 4 to the Schedule 13D filed on October 28,
2001 ("Amendment No. 4"), Amendment No. 5 to the Schedule 13D filed on January
30, 2002 ("Amendment No. 5"), Amendment No. 6 to the Schedule 13D filed on
February 11, 2002 ("Amendment No. 6"), Amendment No. 7 to the 13D filed on March
5, 2002, Amendment No. 8 to the 13D filed on August 20, 2002 ("Amendment No.
8"), Amendment No. 9 to the 13D filed on October 16, 2002 ("Amendment No. 9"),
Amendment No. 10 to the 13D filed on February 13, 2003 ("Amendment No. 10"),
Amendment No. 11 to the 13D filed on March 18, 2004 ("Amendment No. 11"), and
Amendment No. 12 to the 13D filed on May 19, 2004, by the undersigned relating
to the shares of common stock, $0.0001 par value per share, (the "Common Stock")
of Fog Cutter Capital Group Inc., a Maryland corporation (the "Issuer"). Unless
indicated otherwise, all defined terms used herein shall have the respective
meanings ascribed to them in the Schedule 13D.
The purpose of this Amendment No. 13 to Schedule 13D is to report
changes in certain information reported by the Reporting Persons on its previous
Schedule 13D and the amendments thereto.
ITEM 1. SECURITY OF THE ISSUER
The responses to Item 1 contained in the Reporting Persons' initial
filing on this Schedule 13D and all prior amendments thereto are incorporated
herein by this reference.
ITEM 2. IDENTITY AND BACKGROUND.
This Amendment is being filed by: Andrew Wiederhorn, Tiffany
Wiederhorn, TTMM, L.P., and WM Starlight Investments, LLC (the "Reporting
Persons"). Andrew Wiederhorn has been the Chairman of the Board of Directors,
Chief Executive Officer, Secretary and Treasurer of the Issuer, formerly known
as Wilshire Real Estate Investment Inc. and Wilshire Real Estate Investment
Trust Inc., since its formation in 1997. Tiffany Wiederhorn is Mr. Wiederhorn's
spouse. TTMM, L.P. is a California limited partnership which is engaged in
making investments. Ivy Capital Partners, L.P., a California limited
partnership, is the general partner of TTMM, L.P. The Wiederhorn Family Limited
Partnership, a California limited partnership, is the general partner of Ivy
Capital Partners, L.P. Tiffany Wiederhorn is the general partner of the
Wiederhorn Family Limited Partnership. WM Starlight Investments, LLC is a
Delaware limited liability company which is engaged in making investments.
Tiffany Wiederhorn is the managing member and majority owner of WM Starlight
Investments, LLC. TTMM, L.P. is the only other owner of WM Starlight
Investments, LLC. Schedule A annexed hereto and incorporated by reference herein
sets forth the addresses of the Reporting Persons.
On June 3, 2004, pursuant to a settlement agreement with the United
States government, Andrew Wiederhorn pleaded guilty to two felony violations of
federal law, for which he was sentenced to an 18-month term in custody and
agreed to pay $2 million in restitution and a $25,000 fine. The charges for
which Mr. Wiederhorn pleaded guilty involved a violation of ERISA and filing of
a false income tax return. Other than Mr. Wiederhorn, none of the Reporting
Persons has, during the last five years, been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors). Other than
Mr. Wiederhorn, 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
6
subject to a judgement, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities laws,
or finding any violations with respect to such laws.
Information with respect to each of the Reporting Persons is given
solely by such Reporting Person and no Reporting Person is responsible for the
accuracy or completeness of information supplied by another Reporting Person.
The filing of this Schedule 13D (including all amendments thereto) does
not constitute an admission by any of the persons making this filing that such
persons are a "group" for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934 (the "Act"). The Reporting Persons deny that they should be
deemed to be such a "group," and such persons are making this filing only
because they may be deemed to constitute a "group" for purposes of Section
13(d)(3) of the Act.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The responses to Item 3 contained in the Reporting Persons' initial
filing on this Schedule 13D and all prior amendments thereto are incorporated
herein by this reference.
ITEM 4. PURPOSE OF THE TRANSACTION.
The responses to Item 4 contained in the Reporting Persons' initial
filing on this Schedule 13D and all prior amendments thereto are incorporated
herein by this reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The ownership by the Reporting Persons of shares of Common Stock and
the percentage of the outstanding shares of Common Stock represented thereby is
as follows:
NUMBER OF SHARES PERCENTAGE OF COMMON
BENEFICIALLY OWNED STOCK OUTSTANDING (1)
------------------ ---------------------
Andrew Wiederhorn 2,862,111 (2) 31.8%
Tiffany Wiederhorn 2,862,111 (3) 31.8%
TTMM, L.P. 991,709 11.8%
WM Starlight Investments, LLC 13,826 0.2%
----------
(1) Computed on the basis of 8,377,673 shares of Common Stock outstanding as
disclosed in the Issuer's Annual Report on Form 10-Q filed on August 16,
2004.
(2) Includes 1,521,465 shares of Common Stock owned by the other Reporting
Persons. Andrew Wiederhorn shares voting and dispositive power with respect
to the shares of Common Stock owned by the other Reporting Persons and may
be deemed to be the beneficial owner of all such shares. Mr. Wiederhorn
disclaims beneficial ownership of such shares. Also includes 630,000 shares
of Common Stock issuable upon the exercise of outstanding options. Excludes
112,500 and 117,500 shares of Common Stock which are allocated to Mr.
Wiederhorn in the Fog Cutter Long Term Vesting Trust (the "Trust") and
deliverable to Mr. Wiederhorn upon vesting on September 30, 2007 and July
23, 2007, respectively. Excludes the remaining 464,500 shares of Common
Stock held in the Trust which have been allocated to other employees or
directors of the Issuer or have not been allocated. Although Mr. Wiederhorn
acts as a Trustee for the Trust, he does not have any beneficial
7
ownership or voting rights with respect to the shares of Common Stock in
the Trust. Also includes 147,825 shares of Common Stock held in the Tiffany
A. Wiederhorn Grantor Retained Annuity Trust I (with respect to which
Tiffany Wiederhorn exercises voting and dispositive power) and 13,826
shares of Common Stock owned by W.M. Starlight Investments, LLC (Mr.
Wiederhorn's spouse is the manager and majority owner of this limited
liability company). Mr. Wiederhorn may be deemed to be the beneficial owner
of such shares, but disclaims beneficial ownership of such shares. Also
includes 158,795 shares of Common Stock owned by Andrew and Tiffany
Wiederhorn's minor children. While such shares are held in custody for the
benefit of such minor children pursuant to arrangements that do not give
Mr. Wiederhorn any dispositive or voting power over such shares, Andrew
Wiederhorn may be deemed to share voting and/or dispositive power with
respect to such shares of Common Stock and may be deemed to be the
beneficial owner of such shares. Mr. Wiederhorn disclaims beneficial
ownership of such shares. Of the 2,862,111 shares, Andrew Wiederhorn shared
power to vote or to direct the vote of all of such shares and shared power
to dispose or to direct the disposition of all of such shares.
(3) Includes 2,039,561 shares of Common Stock owned by other Reporting Persons,
including 630,000 shares which are issuable to Mr. Wiederhorn upon the
exercise of outstanding options. Tiffany Wiederhorn shares voting and
dispositive power with respect to the shares of Common Stock owned by TTMM,
L.P. and may be deemed to be the beneficial owner of such shares. Tiffany
Wiederhorn disclaims beneficial ownership of such shares of Common Stock.
Also includes 147,825 shares of Common Stock held in the Tiffany A.
Wiederhorn Grantor Retained Annuity Trust I and 13,826 shares of Common
Stock owned by W.M. Starlight Investments, LLC, with respect to which
Tifffany Wiederhorn exercises voting and dispositive power and may be
deemed to be the beneficial owner of such shares. Also includes 158,795
shares of Common Stock owned by Andrew and Tiffany Wiederhorn's minor
children. While such shares are held in custody for the benefit of such
minor children pursuant to arrangements that do not give Tiffany Wiederhorn
any dispositive or voting power over such shares, Tiffany Wiederhorn may be
deemed to share voting and/or dispositive power with respect to such shares
of Common Stock and may be deemed to be the beneficial owner of such
shares. Tiffany Wiederhorn disclaims beneficial ownership of such shares.
Of the 2,862,111 shares, Tiffany Wiederhorn shared power to vote or to
direct the vote of all of such shares and shared power to dispose or to
direct the disposition of all of such shares.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The responses to Item 6 contained in the Reporting Persons' initial
filing on this Schedule 13D and all prior amendments thereto are incorporated
herein by this reference.
The description of the agreements in Item 4 of this 13D, and prior
amendments to this 13D, are incorporated herein by reference.
On April 30, 2004, Andrew Wiederhorn entered into a letter agreement
with Clarence B. Coleman, pursuant to which Mr. Wiederhorn granted Mr. Coleman a
put option to require Mr. Weiderhorn to purchase 100,000 shares of Common Stock
at a price of $5.40 per share. This put option is exercisable by Mr. Coleman on
any business day during the month of March 2005, upon 30 days advance written
notice to Mr. Wiederhorn. Unless exercised, the put option will expire on March
2, 2005. Mr. Coleman agreed to retain beneficial ownership of the shares subject
to the put option until the expiration of the put option. A copy of the letter
agreement is attached to this Amendment as Exhibit 1.
On July 9, 2004, Andrew Wiederhorn entered into a letter agreement with
the Clarence & Joan Coleman Charitable Foundation (the "Foundation"), pursuant
to which Mr. Wiederhorn granted the Foundation a put option to require Mr.
Weiderhorn to purchase 323,000 shares of Common Stock at a price of $5.40 per
share. This put option is exercisable by the Foundation on any business day
during the 30 day period commencing on October 31, 2005, upon 30 days
8
advance written notice to Mr. Wiederhorn. Unless exercised, the put option will
expire on November 1, 2005. The Foundation agreed to retain beneficial ownership
of the shares subject to the put option until the expiration of the put option.
A copy of the letter agreement is attached to this Amendment as Exhibit 2.
On October 8, 2004, the minor children of Andrew and Tiffany Wiederhorn
purchased in the open market 3,800 shares of Common Stock at a purchase price of
$4.15 per share, 3,600 shares of Common Stock at a purchase price of $4.13 per
share and 1,800 shares of Common Stock at a purchase price of $4.14 per share.
Andrew or Tiffany Wiederhorn may be deemed to have effected such transactions;
however, Andrew and Tiffany Wiederhorn disclaim beneficial ownership of such
shares.
On April 7, 2004, July 8, 2004 and October 11, 2004, the Tiffany A.
Wiederhorn Grantor Retained Annuity Trust I, of which Tiffany Wiederhorn is the
grantor, trustee and beneficiary, transferred 22,818, 35,259 and 36,133 shares
of common Stock, respectively, to Tiffany Wiederhorn without consideration.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT
NO. DESCRIPTION
------- -----------
1. Letter agreement dated April 30, 2004 between Andrew
Wiederhorn and Clarence B. Coleman.
2. Letter agreement dated July 9, 2004 between Andrew Wiederhorn
and the Clarence & Joan Coleman Charitable Foundation.
9
SIGNATURES
After reasonable inquiry and to the best of knowledge and belief of
each person or entity set forth below, each such person or entity certifies that
the information set forth in this Statement is true, complete and correct.
October 29, 2004 /S/ ANDREW A. WIEDERHORN
-----------------------------------
Andrew A. Wiederhorn
October 29, 2004 /S/ TIFFANY WIEDERHORN
-----------------------------------
Tiffany Wiederhorn
October 29, 2004 TTMM, L.P.
By: IVY CAPITAL PARTNERS, L.P.,
its general partner
By: WIEDERHORN FAMILY LIMITED PARTNERSHIP,
its general partner
By: /S/ TIFFANY WIEDERHORN
--------------------------------------
Tiffany Wiederhorn, its general
partner
October 29, 2004 WM STARLIGHT INVESTMENTS, LLC
By: /S/ TIFFANY WIEDERHORN
--------------------------------------
Tiffany Wiederhorn, its
Managing member
10
SCHEDULE A
ADDRESSES OF REPORTING PERSONS
Andrew Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, OR 97201
Tiffany Wiederhorn
c/o Fog Cutter Capital Group Inc.
1410 SW Jefferson St.
Portland, OR 97201
TTMM, L.P.
1410 SW Jefferson St.
Portland, OR 97201
WM Starlight Investments, LLC
1410 SW Jefferson St.
Portland, OR 97201
11
EXHIBIT 1
April 30, 2004
VIA FACSIMILE: (510) 614-5566 AND
ELECTRONIC MAIL
Mr. Clarence B. Coleman C/O CCKX, Inc. 2401 Merced Street San Leandro,
California 94577
RE: AGREEMENT - 100,000 SHARES FCCG
Dear Bud:
You hereby agree to retain ownership of 100,000 shares (the "Retained
Shares") of your existing shares of the common stock of Fog Cutter Capital Group
Inc. (the "Company") until at least March 1, 2005; provided, however that you
may make transfers of the Retained Shares by gift to your spouse or lineal
descendants, to any trust for your benefit or the benefit of your spouse and/or
lineal descendants, or to your personal representative upon your death for
purposes of administration of your estate; PROVIDED, FURTHER that any such
transferee shall, prior to such transfer, consent in writing to be bound by this
agreement. Your remaining shares of the Company net of (excluding) the Retained
Shares can be sold at any time by you.
You may put Retained Shares to me individually on any business day in
March 2005, for a sale by you and purchase by me at a price of $5.40 per share
in cash. You agree to give me written notice of your intention to exercise this
put option at least 30-days prior to the closing date which shall be specified
in the notice (which shall not occur prior to March 1, 2005, nor later than
March 31, 2005) of the put of the Retained Shares, to the address indicated on
this letter and by fax to 503-553-7464 with copy to R. Scott Stevenson at Fog
Cutter Capital Group at 1410 SW Jefferson Street, Portland, Oregon 97201. Upon
your exercise of the put, I will be required to consummate the purchase of the
number of Retained Shares set forth in your notice to me, by delivery to you of
immediately available funds equal to $5.40 per share on the closing date set
forth in the notice.
You will continue to be the beneficial owner of the Retained Shares
until such times as they are put to me or sold by you in your discretion. This
agreement will expire on March 2, 2005, unless you have delivered the written
notice of your intention to exercise the put on or prior to March 1, 2005. On or
after March 2, 2005, you may sell the Retained Shares referred to above or keep
them as you decide in your sole and absolute discretion, if you have not
exercised your put option as discussed.
You agree that this agreement may be assigned by me to Fog Cutter
Capital Group Inc. at any time.
Very truly yours,
/s/ Andrew A. Wiederhorn
------------------------------
Andrew A. Wiederhorn
Agreed and Accepted:
/s/ C.B. Coleman
--------------------
C.B. Coleman
EXHIBIT 2
July 9, 2004
Barbara Frey
Clarence & Joan Coleman Charitable Foundation
2401 Merced Street
San Leandro, California 94577
Re: Agreement - FCCG Shares
Dear Barbara:
On behalf of the Clarence & Joan Coleman Charitable Foundation (The Foundation),
you, Barbara Frey, hereby agree to retain ownership of 323,000 shares (the
"Retained Shares") of your existing shares of the common stock of Fog Cutter
Capital Group Inc. (the "Company") until at least October 31, 2005.
The Foundation may put Retained FCCG Shares to me individually on any business
day during the 30 day period commencing on October 31, 2005, for a sale by The
Foundation and purchase by me at a price of $5.40 per share in cash. The
Foundation agrees to give me written notice of its intention to exercise this
put option at least 30 days prior to the closing date which shall be specified
in the notice (which shall not occur prior to October 31, 2005, nor later than
November 29, 2005) of the put of the Retained Shares, to the address indicated
on this letter and by fax to 503-553-7464 with copy to R. Scott Stevenson at Fog
Cutter Capital Group at 1410 SW Jefferson Street, Portland, Oregon 97201. Upon
The Foundation's exercise of the put, I will be required to consummate the
purchase of the number of Retained Shares set forth in The Foundation's notice
to me, by delivery to The Foundation of immediately available funds equal to
$5.40 per share on the closing date set forth in the notice.
You will continue to be the beneficial owner of the Retained Shares until such
times as they are put to me or sold by you in your discretion. This agreement
will expire on November 1, 2005, unless you have delivered the written notice of
your intention to exercise the put on or prior to October 31, 2005. On or after
November 1, 2005, you may sell the Retained Shares referred to above or keep
them as you decide in your sole and absolute discretion, if you have not
exercised your put option as discussed.
Barbara Frey, on behalf of The Foundation, agrees that this agreement may be
assigned by me or any qualified officer of The Foundation to Fog Cutter Capital
Group Inc. at any time.
Very truly yours,
/s/ Andrew A. Wiederhorn
----------------------------------
Andrew A. Wiederhorn
Agreed and Accepted:
/s/ Barbara Frey
--------------------
Barbara Frey
OBO Clarence & Joan Coleman Charitable Foundation