UNITED STATED
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. 14)
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)
February 27, 2006
(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
2,271,871 (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
2,271,871 (See Responses to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,271,871
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.5% (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
2,271,871 (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
2,271,871 (See Responses to Items 4 and 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,271,871
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.5% (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
964,592
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 964,592
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
964,592
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.1% (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 PERSON
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. 14 (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 Schedule 13D filed
on March 5, 2002, Amendment No. 8 to the Schedule 13D filed on August 20, 2002
("Amendment No. 8"), Amendment No. 9 to the Schedule 13D filed on October 16,
2002 ("Amendment No. 9"), Amendment No. 10 to the Schedule 13D filed on February
13, 2003 ("Amendment No. 10"), Amendment No. 11 to the Schedule 13D filed on
March 18, 2004 ("Amendment No. 11"), Amendment No. 12 to the Schedule 13D filed
on May 19, 2004 ("Amendment No. 12"), and Amendment No. 13 to the Schedule 13D
filed on October 29, 2004 ("Amendment No. 13"), 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. 14 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
6
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 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 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. The purpose of this Amendment No. 14 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 4 is hereby amended
to report the following information:
As previously reported on Amendment #12 to this Schedule 13D, on April
27, 2004, Andrew Wiederhorn entered into a Call Option Agreement with the
Issuer, pursuant to which the Issuer paid Andrew Wiederhorn $750,000 in exchange
for the right to purchase, at any time or from time to time prior to April 27,
2007, all or any portion of 423,245 shares of Common Stock held by Andrew
Wiederhorn or his affiliates. On March 14, 2005, the Issuer exercised this call
option right and on March 28, 2005 completed the purchase of 404,026 shares of
Common Stock from Andrew Wiederhorn and 19,219 shares of Common Stock from
Tiffany Wiederhorn, for a price of $3.99 per share.
7
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 2,271,871(2) 27.1%
-------------------------------- --------------------- -------------------------
Tiffany Wiederhorn 2,271,871(3) 27.1%
-------------------------------- --------------------- -------------------------
TTMM, L.P. 964,592 12.1%
-------------------------------- --------------------- -------------------------
WM Starlight Investments, LLC 13,826 0.2%
-------------------------------- --------------------- -------------------------
(1) Computed on the basis of 7,957,428 shares of Common Stock outstanding
as disclosed in the Issuer's Quarterly Report on Form 10-Q filed on
November 14, 2005.
(2) Includes 1,230,127 shares of Common Stock owned by the other Reporting
Persons. While Andrew Wiederhorn may be deemed to share 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 327,098 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 November 30,
2008. Excludes the remaining 533,357 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 ownership or voting
rights with respect to the shares of Common Stock in the Trust. Also
includes 222,827 shares of Common Stock held in the Tiffany A. Wiederhorn
Grantor Retained Annuity Trust II (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 188,917 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, Mr. 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
2,271,871 shares, Andrew Wiederhorn shares power to vote or to direct the
vote of all of such shares and shares power to dispose or to direct the
disposition of all of such shares.
(3) Includes 1,608,418 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 222,827 shares of Common Stock held in the Tiffany A.
Wiederhorn Grantor Retained Annuity Trust II and 13,826 shares of Common
Stock owned by W.M. Starlight Investments, LLC, with respect to which
Tiffany Wiederhorn exercises voting and dispositive power and may be
deemed to be the beneficial owner of such shares. Also includes 188,917
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 2,271,871 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.
On October 6, 2005, the Tiffany A. Wiederhorn Grantor Retained Annuity
Trust I, of which Tiffany Wiederhorn is the grantor, trustee and beneficiary,
transferred 12,882 shares of common Stock to Tiffany Wiederhorn without
consideration.
8
On October 17, 2005 and January 5, 2006, the Tiffany A. Wiederhorn
Grantor Retained Annuity Trust II, of which Tiffany Wiederhorn is the grantor,
trustee and beneficiary, transferred 3,376 shares and 23,797 shares of common
Stock, respectively, to Tiffany Wiederhorn without consideration.
On October 29, 2005, December 1, 2005 and January 19, 2006, Tiffany
Wiederhorn transferred 50,000 and shares of Common Stock, 45,000 shares of
Common Stock and 50,000 shares of Common Stock, respectively, as charitable
gifts to a university.
On January 19, 2006, TTMM, L.P. sold and aggregate of 27,117 shares of
Common Stock to certain individuals at price of $3.70 per share. Of these
shares, the minor children of Andrew and Tiffany Wiederhorn purchased an
aggregate of 24,139 shares of Common Stock from TTMM, L.P. Andrew or Tiffany
Wiederhorn may be deemed to have effected such transactions of their minor
children; however, Andrew and Tiffany Wiederhorn disclaim beneficial ownership
of the shares held by their minor children.
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 Schedule 13D, and
prior amendments to this Schedule 13D, are incorporated herein by reference.
On February 27, Andrew Wiederhorn entered into a letter agreement with
Clarence B. Coleman, as Trustee of the C.B. Coleman and Joan F. Coleman
Revocable Trust (the "Coleman Trust"), pursuant to which Mr. Wiederhorn granted
the Coleman Trust a put option to require Mr. Wiederhorn to purchase 100,000
shares of Common Stock at a price of $5.90 per share. This put option is
exercisable by the Coleman Trust during the period from April 1, 2006 through
November 30, 2006. Upon exercise of the put and within 30 days of notice of
exercise, Mr. Wiederhorn must specify the closing date of the purchase which
shall be no later than March 31, 2007. Unless exercised, the put option will
expire on December 1, 2006. The Coleman Trust agreed to retain
9
beneficial ownership of the shares subject to the put option until the
expiration of the put option. As additional consideration, Mr. Wiederhorn agreed
to make payments to the Coleman Trust of $39,375.00 on June 1, 2006 and
$2,812.50 each month thereafter until the termination of the agreement or
purchase of the shares by Mr. Wiederhorn. A copy of the letter agreement is
attached to this Amendment as Exhibit 1.
On February 27, Andrew Wiederhorn entered into a letter agreement with
Clarence & Joan Coleman Charitable Foundation (the "Coleman Foundation"),
pursuant to which Mr. Wiederhorn granted the Coleman Foundation a put option to
require Mr. Wiederhorn to purchase 323,189 shares of Common Stock at a price of
$5.40 per share. This put option is exercisable by the Coleman Foundation during
the period from April 1, 2006 through November 30, 2006. Upon exercise of the
put and within 30 days of notice of exercise, Mr. Wiederhorn must specify the
closing date of the purchase which shall be no later than March 31, 2007. Unless
exercised, the put option will expire on December 1, 2006. The Coleman
Foundation agreed to retain beneficial ownership of the shares subject to the
put option until the expiration of the put option. As additional consideration,
Mr. Wiederhorn agreed to make payments to the Coleman Foundation of $54,538.08
on June 1, 2006 and $9,089.68 each month thereafter until the termination of the
agreement or purchase of the shares by Mr. Wiederhorn. A copy of the letter
agreement is attached to this Amendment as Exhibit 2.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT
NO. DESCRIPTION
1. Letter agreement dated February 27, 2006 between Andrew
Wiederhorn and Clarence B. Coleman, as Trustee of the C.B.
Coleman and Joan F. Coleman Revocable Trust.
2. Letter agreement dated February 27 between Andrew Wiederhorn and
the Clarence & Joan Coleman Charitable Foundation.
10
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.
March 8, 2006 /s/ Andrew A. Wiederhorn
--------------------------------------------
Andrew A. Wiederhorn
March 8, 2006 /s/ Tiffany Wiederhorn
--------------------------------------------
Tiffany Wiederhorn
March 8, 2006 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
March 8, 2006 WM STARLIGHT INVESTMENTS, LLC
By: /s/ Tiffany Wiederhorn
----------------------------------------
Tiffany Wiederhorn, its
Managing member
11
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
EXHIBIT 1
February 27, 2006
Mr. Clarence B. Coleman,
Trustee of the C.B. Coleman and Joan F. Coleman Revocable Trust
C/O CCKX, Inc.
2401 Merced Street
San Leandro, California 94577
RE: AGREEMENT - FCCG SHARES
Ladies and Gentlemen:
In connection with existing shares of Fog Cutter Capital Group Inc.
(the "Company") held by Clarence B. Coleman, as Trustee of the C.B. Coleman and
Joan F. Coleman Revocable Trust ("Coleman"), Coleman and the undersigned, Andrew
A. Wiederhorn ("Wiederhorn"), hereby agree as follows:
1. Subject to the terms and condition set forth herein, Coleman hereby
agrees to retain ownership of 100,000 shares (the "Retained Shares") of the
existing shares of the common stock of the Company held by Coleman until the
earlier of the expiration of the Put Right (as defined below) pursuant to
paragraph 4 below and the closing of the Retained Shares by Wiederhorn upon
exercise of the Put Right; PROVIDED, HOWEVER that Coleman may make transfers of
the Retained Shares by gift to Coleman's spouse or lineal descendants, to any
trust for the benefit or the benefit of Coleman's spouse and/or lineal
descendants, or to Coleman's personal representative upon his death for purposes
of administration of his estate (provided, further that any such transferee
shall, prior to such transfer, consent in writing to be bound by this
agreement).
2. Coleman shall have the right to put the Retained Shares held by
Coleman to Wiederhorn individually, for a sale by Coleman and purchase by
Wiederhorn on the terms and conditions described herein at a price in cash equal
to $5.90 per share ("Put Right"). As additional consideration, Wiederhorn agrees
to pay Coleman the amount of $39,375.00 on June 1, 2006 and $2,812.50 on the
first day of each calendar month thereafter (pro rated for any partial month)
through the earlier of the expiration of the Put Right pursuant paragraph 4
below and the closing of the purchase by Wiederhorn of the Retained Shares upon
exercise of the Put Right (the "Additional Consideration").
3. (a) The Put Right may be exercised by Coleman by delivery of
written notice of exercise to Wiederhorn at any time on or after April 1, 2006
and prior to November 30, 2006, to Wiederhorn's address and by fax to
503-553-7401. The notice of exercise shall include instructions for payment of
the purchase price at closing. The notice of exercise shall include instructions
for payment of the purchase price at closing. Within 30 days of receipt of the
notice of exercise of the Put Right, Wiederhorn shall deliver to Coleman a
written notice specifying the closing date for the purchase of the Retained
Shares by Wiederhorn, which closing date shall be determined by Wiederhorn in
his discretion but shall be no later than March 31, 2007. Upon exercise of the
Put Right, Wiederhorn will be required to consummate the purchase of the number
of Retained Shares set forth in the written notice of exercise, by delivery to
Coleman, on the closing date specified by Wiederhorn, of immediately available
funds equal to the amount specified in paragraph 2 above. At least five days
prior to the closing date for the transaction, Wiederhorn shall provide Coleman
with instructions for delivery of the Retained Shares upon payment.
(b) In the event that the Additional Consideration should not
be received by Coleman on or before the fifteenth (15) business day of any
month, Coleman shall have right (but not the obligation) to exercise (or
re-exercise) the Put Right and provide the instructions for payment and
Wiederhorn shall, in that event provide Coleman within 5 (5) business days
instructions for delivery of the Retained Shares, and the transaction shall
close fifteen (15) business days after Coleman's exercise (or re-exercise) of
the Put Right.
4. Coleman will continue to be the beneficial owner of the Retained
Shares until such time as the Retained Shares are put to Wiederhorn or sold by
Coleman, in his discretion. This letter agreement will expire on December 1,
2006, unless Coleman has delivered the written notice of exercise of the Put
Right granted hereunder on or prior to November 30, 2006. On or after December
1, 2006, Coleman may sell the Retained Shares referred to above or keep them as
he decides in his sole and absolute discretion, if the Put Right has not been
exercised as provided in paragraph 3(a). If Coleman exercise his rights under
paragraph 3(b), Coleman may sell the Retained Shares or any of them twenty (20)
business days after Coleman's exercise of the Put Right.
5. Wiederhorn agrees to indemnify, defend (with counsel chosen by
Wiederhorn) and hold harmless Coleman from and against all costs or liabilities,
including attorneys' fees and costs of defense, of Coleman resulting directly or
indirectly from any third party claims arising out of or relating to any
assignment by Wiederhorn of his rights or obligations hereunder. Wiederhorn
shall have the exclusive right to control the defense and settlement of any such
claims; PROVIDED, HOWEVER, that Coleman may, at his own cost and expense,
participate, through its attorneys or otherwise, in such defense of such claims
and any appeal arising therefrom; PROVIDED, FURTHER, that Wiederhorn shall not
have the right to settle any such claim against Coleman without Coleman's prior
consent, unless such settlement does not involve a remedy other than the payment
of money, and provides for a full and unconditional release of all liability
against Coleman. However, in the event that Wiederhorn should assign or purport
to assign any right or obligation hereunder, Wiederhorn will remain directly and
personally liable for the discharge of all his obligations under this Agreement,
including without limitation, the obligation to pay for the Retained Shares if
the Put Right should be exercised, the obligation to pay the Additional
Consideration and the obligation to indemnify Coleman or his assigns, and
Coleman may elect to enforce his rights under this Agreement against Wiederhorn
directly without proceeding against or joining any other person or entity.
6. This Agreement and the obligations of the parties hereunder will be
governed by and construed in accordance with the laws of the State of New York
without giving effect to any choice of law principles that may require the
application of any other laws.
7. This letter agreement supersedes all prior agreements and
understandings between Coleman and Wiederhorn with respect to the Retained
Shares and the matters provided for herein.
If the foregoing correctly sets forth our understanding, please sign in
the space provided below whereupon this letter shall constitute a binding
agreement among us. This letter agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Very truly yours,
/s/ Andrew A. Wiederhorn
-----------------------------
Andrew A. Wiederhorn
Agreed and Accepted:
/s/ Clarence B. Coleman
--------------------------------------
Clarence B. Coleman, as Trustee of the
C.B. Coleman and Joan F. Coleman
Revocable Trust
EXHIBIT 2
February 27, 2006
Board of Directors
Clarence & Joan Coleman Charitable Foundation
2401 Merced Avenue Suite 300
San Leandro, California 94577
RE: AGREEMENT - FCCG SHARES
Ladies and Gentlemen:
In connection with existing shares of Fog Cutter Capital Group Inc.
(the "Company") held by the Clarence & Joan Coleman Charitable Foundation (the
"Foundation"), the Foundation and the undersigned, Andrew A. Wiederhorn
("Wiederhorn"), hereby agree as follows:
1. Subject to the terms and condition set forth herein, the Foundation
hereby agrees to retain ownership of 323,189 shares (the "Retained Shares") of
the existing shares of the common stock of the Company held by the Foundation
until the earlier of the expiration of the Put Right (as defined below) pursuant
to paragraph 4 below and the closing of the Retained Shares by Wiederhorn upon
exercise of the Put Right.
2. The Foundation shall have the right to put the Retained Shares held
by the Foundation to Wiederhorn individually, for a sale by the Foundation and
purchase by Wiederhorn on the terms and conditions described herein (such right
is referred to as the "Put Right") at a price in cash equal to $5.40 per share.
As additional consideration, Wiederhorn agrees to pay the Foundation the amount
of $54.538.08 on June 1, 2006 and $9,089.68 on the first day of each calendar
month thereafter (pro rated for any partial month) through the earlier of the
expiration of the Put Right pursuant paragraph 4 below and the closing of the
purchase by Wiederhorn of the Retained Shares upon exercise of the Put Right.
3. (a) The Put Right may be exercised by the Foundation by
delivery of written notice to Wiederhorn at any time on or after April 1, 2006
and prior to November 30, 2006, to Wiederhorn's address and by fax to
503-553-7401. The notice of exercise shall include instructions for payment of
the purchase price at closing. Within 30 days of receipt of the notice of
exercise of the Put Right, Wiederhorn shall deliver to the Foundation a written
notice specifying the closing date for the purchase of the Retained Shares by
Wiederhorn, which closing date shall be determined by Wiederhorn in his
discretion but shall be no later than March 31, 2007. Upon exercise of the Put
Right, Wiederhorn will be required to consummate the purchase of the number of
Retained Shares set forth in the written notice of exercise, by delivery to the
Foundation, on the closing date specified by Wiederhorn, of immediately
available funds equal to the amount specified in paragraph 2 above. At least
five days prior to the closing date for the transaction, Wiederhorn shall
provide the Foundation with instructions for delivery of the Retained Shares
upon payment.
(b) In the event that the Additional Consideration should not
be received by the Foundation on or before the fifteenth (15) business day of
any month, the Foundation shall have the right (but not the obligation) to
exercise (or re-exercise) the Put Right and provide the instructions for payment
and Wiederhorn shall, in that event, provide the Foundation within five (5)
business days with instructions for delivery of the Retained Shares, and the
transaction shall close fifteen (15) business days after the Foundation's
exercise (or re-exercise) of the Put Right.
4. The Foundation will continue to be the beneficial owner of the
Retained Shares held by it until such times as the Retained Shares are put to
Wiederhorn or sold by the Foundation, in its discretion. This letter agreement
will expire on December 1, 2006, unless the Foundation has delivered the written
notice of exercise of the Put Right granted hereunder on or prior to November
30, 2006. On or after December 1, 2006, the Foundation may sell the Retained
Shares referred to above or keep them as it decides in its sole and absolute
discretion, if the Put Right has not been exercised as provided in paragraph
3(a). If the Foundation exercises its right under paragraph 3(b), the Foundation
may sell the Retained Shares or any of them twenty (20) business days after the
Foundation's exercise of the Put Right.
5. Wiederhorn agrees to indemnify, defend (with counsel chosen by
Wiederhorn) and hold harmless the Foundation from and against all costs or
liabilities, including attorneys' fees and costs of defense, of the Foundation
resulting directly or indirectly from any third party claims arising out of or
relating to any assignment by Wiederhorn of his rights or obligations hereunder.
Wiederhorn shall have the exclusive right to control the defense and settlement
of any such claims; PROVIDED, HOWEVER, that the Foundation may, at its own cost
and expense, participate, through its attorneys or otherwise, in such defense of
such claims and any appeal arising therefrom; PROVIDED, FURTHER, that Wiederhorn
shall not have the right to settle any such claim against the Foundation without
the Foundation's prior consent, unless such settlement does not involve a remedy
other than the payment of money, and provides for a full and unconditional
release of all liability against the Foundation. However, in the event that
Wiederhorn should assign or purport to assign any right or obligation under this
Agreement, Wiederhorn will remain directly and personally liable for the
discharge of all his obligations under this Agreement, including without
limitation, the obligation to pay for the Retained Shares if the Put Right
should be exercised, the obligation to pay the Additional Consideration and the
obligation to indemnify the Foundation or its assigns, and the Foundation may
enforce their rights under this Agreement against Wiederhorn directly without
proceeding against or joining any other person or entity.
6. This Agreement and the obligations of the parties hereunder will be
governed by and construed in accordance with the laws of the State of New York
without giving effect to any choice of law principles that may require the
application of any other laws.
7. This letter agreement supersedes all prior agreements and
understandings between the Foundation and Wiederhorn with respect to the
Retained Shares and the matters provided for herein.
If the foregoing correctly sets forth our understanding, please sign in
the space provided below whereupon this letter shall constitute a binding
agreement among us. This letter agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Very truly yours,
/s/ Andrew A. Wiederhorn
----------------------------
Andrew A. Wiederhorn
Agreed and Accepted:
Clarence & Joan Coleman Charitable Foundation
/s/ Clarence B. Coleman
---------------------------------
By: Clarence B. Coleman
Its: President