Form SC 13D/A CCA INDUSTRIES INC Filed by: BIGLARI CAPITAL CORP.
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No._)†*
Under the Securities Exchange Act of 1934
CCA INDUSTRIES, INC.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
124867102
(CUSIP Number)
Sardar Biglari
17802 IH 10 West, Suite 400
San Antonio, Texas 78257
(210) 344-3400
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 14, 2016
(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 §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-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 § 240.13d-7 for other parties to whom copies are to be sent.
† This Schedule 13D constitutes Amendment No. 6 to the Schedule 13D on behalf of Biglari Holdings Inc. and Amendment No. 8 to the Schedule 13D on behalf of The Lion Fund, L.P., Biglari Capital Corp. and Sardar Biglari.
*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 disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“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. 124867102
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1
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NAME OF REPORTING PERSON
Biglari Holdings Inc.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Indiana
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
776,259
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8
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SHARED VOTING POWER
-0-
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9
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SOLE DISPOSITIVE POWER
776,259
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10
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SHARED DISPOSITIVE POWER
-0-
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
776,259
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
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14
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TYPE OF REPORTING PERSON
CO
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CUSIP NO. 124867102
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1
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NAME OF REPORTING PERSON
The Lion Fund, L.P.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
-0-
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8
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SHARED VOTING POWER
-0-
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9
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SOLE DISPOSITIVE POWER
-0-
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10
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SHARED DISPOSITIVE POWER
-0-
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
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14
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TYPE OF REPORTING PERSON
PN
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CUSIP NO. 124867102
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1
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NAME OF REPORTING PERSON
Biglari Capital Corp.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
N/A
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
-0-
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|
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8
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SHARED VOTING POWER
-0-
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9
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SOLE DISPOSITIVE POWER
-0-
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||
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10
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SHARED DISPOSITIVE POWER
-0-
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
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||
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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|
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
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14
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TYPE OF REPORTING PERSON
CO
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CUSIP NO. 124867102
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1
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NAME OF REPORTING PERSON
Sardar Biglari
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o
(b) o
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3
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SEC USE ONLY
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||
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4
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SOURCE OF FUNDS
OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
776,259
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|
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8
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SHARED VOTING POWER
-0-
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9
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SOLE DISPOSITIVE POWER
776,259
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||
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10
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SHARED DISPOSITIVE POWER
-0-
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
776,259
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.9%
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14
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TYPE OF REPORTING PERSON
IN
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EXPLANATORY NOTE
Pursuant to Rule 13d-2 promulgated under the Act, (a) this Schedule 13D/A (this “Amendment No. 8”) amends the Schedule 13D initially filed on February 4, 2011, as amended by Amendment Nos. 1-7 (the “Lion Fund Filers Original Schedule 13D”) on behalf of each of The Lion Fund, L.P., a Delaware limited partnership (“The Lion Fund”), Biglari Capital Corp., a Texas limited liability company (“BCC”) and Sardar Biglari in respect of the common stock, par value $0.01 per share (the “Shares”), of CCA Industries, Inc., a Delaware corporation (the “Issuer”) and (b) this Schedule 13D/A (this “Amendment No. 6”) amends the Schedule 13D initially filed on February 4, 2011, as amended by Amendment Nos. 1-5 (the “BH Filers Original Schedule 13D”) on behalf of Biglari Holdings Inc., an Indiana corporation (“BH”) in respect of the Shares of the Issuer. Each of the Lion Fund Filers Original Schedule 13D and the BH Filers Original Schedule 13D is hereby restated in its entirety pursuant to this filing.
On June 14, 2016, The Lion Fund distributed 776,259 Shares to BH, as described in Item 3.
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Item 1.
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Security and Issuer.
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This statement relates to the Shares of CCA Industries, Inc. The address of the principal executive offices of the Issuer is 65 Challenger Road, Suite 340, Ridgefield Park, New Jersey 07660.
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Item 2.
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Identity and Background.
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(a) This statement is filed by BH, Sardar Biglari, The Lion Fund and BCC. Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of BH and Sardar Biglari is referred to as a “BH Filer” and collectively as the “BH Filers.”
BCC is the general partner of The Lion Fund. Sardar Biglari is the Chairman and Chief Executive Officer of BCC and has investment discretion over the securities owned by The Lion Fund. By virtue of these relationships, BCC and Sardar Biglari may be deemed to beneficially own the Shares directly owned by The Lion Fund.
Sardar Biglari is the Chairman and Chief Executive Officer of BH and has investment discretion over the securities owned by BH. By virtue of this relationship, Sardar Biglari may be deemed to beneficially own the Shares owned directly by BH.
Set forth on Schedule A annexed hereto is the name and present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted of each of the executive officers and directors of BH and BCC.
(b) The principal business address of each of the Reporting Persons is 17802 IH 10 West, Suite 400, San Antonio, Texas 78257.
(c) The principal business of BH is a holding company owning subsidiaries engaged in a number of diverse business activities. The principal occupation of Sardar Biglari is serving as Chairman and Chief Executive Officer of BH and BCC. The principal business of The Lion Fund is purchasing, holding and selling securities for investment purposes. The principal business of BCC is serving as the general partner of The Lion Fund.
(d) No Reporting Person nor any person listed on Schedule A annexed hereto has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person nor any person listed on Schedule A annexed hereto has, during the last five years, been 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) Sardar Biglari is a citizen of the United States of America. The jurisdiction in which each other Reporting Person is organized is set forth in the Explanatory Note above. The citizenships of the persons listed on Schedule A annexed hereto are set forth thereon.
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Item 3.
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Source and Amount of Funds or Other Consideration.
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When The Lion Fund acquired the Shares, the aggregate purchase price of the 776,259 Shares was approximately $4,283,243. Such Shares were acquired with working capital of The Lion Fund and funds of an affiliated entity that initially purchased the Shares prior to their contribution to The Lion Fund. On June 14, 2016, The Lion Fund distributed the Shares to BH and BH became a successor to certain rights and obligations similar to those of The Lion Fund in exchange for the redemption of limited partnership interests (the “Distribution”).
Except as set forth herein, none of the persons listed on Schedule A annexed hereto currently beneficially own any Shares.
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Item 4.
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Purpose of Transaction.
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Subject to the Agreement (as defined below), from time to time, the Reporting Persons may acquire additional shares of the Issuer’s capital stock or dispose of shares, in the open market or otherwise, or may formulate other purposes, plans or proposals regarding the Issuer or its shares.
On June 14, 2016, Lance T. Funston, The Lion Fund and BH entered into an agreement (the “Agreement”). The Shares are held subject to the Agreement, the terms of which grant BH the right to sell all or a portion of the Shares to Lance T. Funston or his affiliate at a purchase price of $6.00 per share for a period of 30 days after the Restricted Period End Date. Pursuant to the Agreement, BH has agreed to certain transfer restrictions on the Shares until the earlier of (a) January 1, 2019 and (b) the occurrence of specified extraordinary transactions, including (i) the execution of a definitive agreement for, or the public announcement of, a sale of the Issuer in which stockholders will receive less than $6.00 per share, or (ii) the bankruptcy of the Issuer (such earlier date, the “Restricted Period End Date”). Pursuant to the Agreement, BH has further agreed that, until the Restricted Period End Date, it would vote the Shares in accordance with the recommendation of the Board of Directors of the Issuer (the “Board”) on any proposal presented to stockholders. The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and incorporated herein by reference.
Although the foregoing reflects activities presently contemplated by the Reporting Persons with respect to the Issuer, the foregoing is subject to change at any time, and there can be no assurance that any of the Reporting Persons will take any of the actions set forth above. Except in Mr. Biglari’s capacity as a director of the Issuer, no Reporting Person has any present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D except as set forth herein or as would occur upon completion of any of the actions discussed herein.
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Item 5.
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Interest in Securities of the Issuer.
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(a) The aggregate percentage of Shares reported owned by the Reporting Persons is based upon 6,038,982 Shares outstanding, which is the total number of Shares outstanding as of May 12, 2016, as reported in the Issuer’s Proxy Statement filed with the Securities and Exchange Commission on May 18, 2016.
As of the close of business on June 16, 2016 (the “Filing Date”), BH owned directly 776,259 Shares, constituting approximately 12.9% of the Shares outstanding. By virtue of the relationship with BH discussed in further detail in Item 2, Sardar Biglari may be deemed to have the power to vote and dispose of the Shares owned directly by BH and, on that basis, to beneficially own the Shares owned by BH.
Neither Sardar Biglari nor any person set forth on Schedule A annexed hereto directly owns any Shares as of the date hereof.
(b) BH has the power to vote and dispose of 776,259 Shares. By virtue of the relationship with BH discussed in further detail in Item 2, Sardar Biglari may also be deemed to have the power to vote and dispose of the Shares owned directly by BH.
(c) In the period commencing sixty (60) days prior to June 14, 2016, the date of the event which required this filing, and ending on the Filing Date, the Distribution was the sole transaction in the Shares by the Reporting Persons or any other person for whom disclosure is required by General Instruction C.
(d) No person other than the BH Filers is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares.
(e) As of June 14, 2016, The Lion Fund and BCC ceased to beneficially own any Shares and will each no longer be a reporting person.
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Item 6.
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Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
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On June 14, 2016, Lance T. Funston, The Lion Fund and BH entered into the Agreement, as defined and described in Item 4 above and attached as Exhibit 99.1 hereto.
On June 16, 2016, BH, Sardar Biglari, The Lion Fund and BCC entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer (the “Joint Filing Agreement”). The foregoing description of the Joint Filing Agreement is qualified in its entirety by reference to the Joint Filing Agreement, which is attached as Exhibit 99.2 hereto and incorporated herein by reference.
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Item 7.
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Material to be Filed as Exhibits.
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99.1
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Agreement, dated June 14, 2016, by and between Lance T. Funston, The Lion Fund and BH.
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99.2
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Joint Filing Agreement, dated June 16, 2016, by and between BH, Sardar Biglari, The Lion Fund and BCC.
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SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
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Dated: June 16, 2016
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BIGLARI HOLDINGS INC.
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By:
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/s/ Sardar Biglari
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Sardar Biglari, Chief Executive Officer
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/s/ Sardar Biglari
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SARDAR BIGLARI
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THE LION FUND, L.P.
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By:
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Biglari Capital Corp.
General Partner
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By:
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/s/ Sardar Biglari
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Sardar Biglari, Chief Executive Officer
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BIGLARI CAPITAL CORP.
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By:
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/s/ Sardar Biglari
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Sardar Biglari, Chief Executive Officer
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Schedule A
Directors and Executive Officers of Biglari Holdings Inc.
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NAME AND
POSITION WITH BH
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PRESENT PRINCIPAL
OCCUPATION
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BUSINESS ADDRESS
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CITIZENSHIP
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Sardar Biglari,
Chairman of the Board and Chief Executive Officer
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See Item 2
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See Item 2
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See Item 2
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Philip L. Cooley,
Vice Chairman of the Board
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Retired Prassel Distinguished Professor of Business at Trinity University
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c/o Biglari Holdings Inc.
17802 IH 10 West
Suite 400
San Antonio, Texas 78257
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USA
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Kenneth R. Cooper,
Director
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Attorney
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c/o Biglari Holdings Inc.
17802 IH 10 West
Suite 400
San Antonio, Texas 78257
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USA
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Bruce Lewis,
Controller
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Controller of BH
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c/o Biglari Holdings Inc.
17802 IH 10 West
Suite 400
San Antonio, Texas 78257
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USA
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Dr. Ruth J. Person,
Director
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Professor of Management, University of Michigan-Flint
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c/o Biglari Holdings Inc.
17802 IH 10 West
Suite 400
San Antonio, Texas 78257
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USA
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James P. Mastrian,
Director
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Retired; former special advisor to the Chairman and Chief Executive Officer of Rite Aid Corporation
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c/o Biglari Holdings Inc.
17802 IH 10 West
Suite 400
San Antonio, Texas 78257
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USA
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Directors and Executive Officers of Biglari Capital Corp.
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NAME AND
POSITION WITH BCC
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PRESENT PRINCIPAL
OCCUPATION
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BUSINESS ADDRESS
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CITIZENSHIP
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Sardar Biglari,
Chairman of the Board and Chief Executive Officer
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See Item 2
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See Item 2
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See Item 2
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Exhibit 99.1
AGREEMENT
This Agreement (this “Agreement”) is entered into as of June 14, 2016 by and between Lance Funston (“Funston”), The Lion Fund, L.P. (“TLF”) and Biglari Holdings Inc. (individually, “Holdings” and together with Funston, Biglari and TLF, collectively, the “Parties”) for the purpose of (1) amending and superseding an agreement entered into as of November 14, 2014 between Funston and TLF (the “Original Agreement”) and (2) creating certain obligations pursuant to this Agreement among the Parties.
Recitals
1. TLF currently holds directly and Beneficially Owns (as defined below) 776,259 shares (the “Aggregate Shares”) of Common Stock of CCA Industries, Inc., a Delaware corporation (the “Company”), and the Aggregate Shares are subject to certain contractual obligations under the Original Agreement.
2. Funston, Holdings and TLF desire to agree to certain terms and conditions set forth herein regarding the Aggregate Shares and associated matters.
3. Funston believes that TLF is a significant stockholder of the Company and that Sardar Biglari (“Biglari”), as Chairman and Chief Executive Officer of the general partner of TLF and as Chairman and Chief Executive Officer of Holdings, has a long history with, and a familiarity relating to the business operations of, the Company and that, as a result thereof, the Company would benefit from having Biglari serve on the Board of Directors of the Company (the “Board”).
4. The Board, subsequent to the execution of the Original Agreement nominated Biglari and Philip L. Cooley (“Cooley”) to the Board. Biglari and Cooley, the Vice Chairman of Holdings, accepted such nomination and currently serve on the Board.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows:
1. Transfer of Aggregate Shares. TLF has requested that Funston consent to the transfer by TLF of the Aggregate Shares to Holdings (the “Transfer”). Funston hereby consents to the Transfer, in reliance upon and subject to the representations, warranties, covenants and agreements of Holdings and TLF, as set forth herein. TLF covenants to make the Transfer in accordance with and promptly following execution of this Agreement.
2. Lock-up.
(a) Each of TLF and Holdings hereby agrees that continuing through the earliest to occur of (x) January 1, 2019, (y) the execution of a definitive agreement providing for a Company Sale, or the public announcement of a Company Sale, as a result of which stockholders of the Company will receive cash and/or securities in exchange for or in respect of their shares of Common Stock of the Company having an aggregate per share value (the “Per Share Consideration”) of less than the Put Purchase Price (as defined below), and (z) the occurrence of a Bankruptcy Event (with such earliest date, the “Restricted Period End Date” and with the period commencing with the completion of the Transfer and ending with the Restricted Period End Date constituting the “Restricted Period”), or if earlier, the date that this Agreement is terminated by the written consent of Funston, TLF and Holdings will not, without the prior written consent of Funston, directly or indirectly through any Affiliate or Associate, (i) offer, pledge (other than in connection with margin loans in the ordinary course of business), sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, make any short sale or otherwise dispose of or transfer any of the Aggregate Shares or any securities convertible into or exchangeable or exercisable for the Aggregate Shares, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Aggregate Shares, whether any such swap or transaction is to be settled by delivery of the Aggregate Shares or other securities, in cash or otherwise. In order to ensure compliance with the restrictions set forth in this Section 2, Holdings agrees that the Company may issue appropriate stop-transfer certificates or instructions with respect to any Aggregate Shares until the Restricted Period End Date.
(b) During the Restricted Period, each of Holdings and TLF agrees that neither Holdings nor TLF, individually or through any Affiliate or Associate (as defined below), shall acquire (or propose or agree to acquire), of record or Beneficially (as defined below), by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company's loans, debt securities, equity securities or assets,
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other than the Transfer and Holdings’ ownership of the Aggregate Shares following the Transfer; provided, however, the foregoing restriction shall not apply solely as to equity compensation awards for Board or other service to the Company which have been or are approved by the Board.
(c) For purposes of this Section 2:
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(i)
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“Company Sale” means a transaction or series of transactions with a party or group of parties acting in concert that involves (A) any merger, consolidation or business combination of the Company and/or its subsidiaries following which the stockholders of the Company immediately prior to such transaction own, directly or indirectly, less than 50% of the shares or other equity interests of the Company or the surviving entity in any such transaction, or (B) any sale of all or substantially all of the assets of the Company and its subsidiaries taken as a whole, whether by merger, consolidation, other business combination, sale, reorganization, exchange or otherwise.
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(ii)
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“Bankruptcy Event” means (A) the making by the Company or any of its subsidiaries of an assignment for the benefit of creditors or an admission in writing of its inability to pay its debts as they become due, (B) the Company or any of its subsidiaries being adjudicated as bankrupt or insolvent, (C) the appointment of a receiver, liquidator or trustee, or the filing of a petition for the appointment of a receiver, liquidator or trustee, for the Company or any of its subsidiaries or all or a substantial part of their respective assets, (D) the filing of a petition for bankruptcy, reorganization or arrangement pursuant to any federal or state bankruptcy or insolvency law by or against the Company or any of its subsidiaries, or (E) the commencement of a proceeding for the dissolution, liquidation or reorganization of the Company or any of its subsidiaries, provided (in the case of each of clauses (C) through (E)) that, if such appointment, petition or proceeding was involuntary and not consented to by the Company or its subsidiary, the same continues for 60 days without being discharged, stayed or dismissed.
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(iii)
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The value of any security included in the Per Share Consideration shall be the average of the closing prices of such security on the ten trading days immediately preceding the date of the public announcement of the Company Sale, on the exchange where it is primarily traded or, if such security is not traded on an exchange, as reported by an established quotation service for over-the-counter securities.
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(d) For purposes of this Agreement:
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(i)
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“Beneficial”, “Beneficially Owns” or “Beneficially” shall have the meanings consistent with the determination of a “beneficial owner” as set forth in Rule 13d-3 under the Securities Exchange Act of 1934 (the “1934 Act”) and pursuant to applicable SEC interpretations, no action letters and positions as well as court decisions interpreting such terms.
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(ii)
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“Affiliate” (and the associated definition of “control”) shall have the meanings as set forth under Rule 12b-2 under the 1934 Act and pursuant to applicable SEC interpretations, no action letters and positions as well as court decisions interpreting such terms.
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(iii)
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“Associate” shall have the meanings as set forth under Rule 12b-2 under the 1934 Act and pursuant to applicable SEC interpretations, no action letters and positions as well as court decisions interpreting such terms.
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3. Put Right. Holdings shall have the right, exercisable at any time and from time to time beginning on the Restricted Period End Date and continuing for a period of 30 days thereafter (the “Put Period”), to sell all or a portion of the Aggregate Shares to Funston or an Affiliate of Funston, and Funston will be obligated to, or will cause such Affiliate to, purchase such Aggregate Shares, at a purchase price of $6.00 per share (subject to pro rata adjustment for stock splits and combinations, recapitalizations, stock dividends and similar transactions) (the “Put Purchase Price”). Such rights to sell to Funston or such Affiliate pursuant to this Section 3 are referred to herein as the “Put Right.” Holdings shall exercise the Put Right by giving written notice of exercise (the “Put Right Notice”) to Funston, which notice shall set forth the number of Aggregate Shares to be purchased by Funston or such Affiliate (the “Put Shares”). Within seven business days after Funston or his Affiliate receives the Put Right Notice, Funston shall, or shall cause such Affiliate to, pay the aggregate Put Purchase Price for the Put Shares to Holdings by check or wire transfer of immediately available funds to an account designated by Holdings . Promptly after Holdings receives such payment, Holdings shall deliver (or arrange for delivery) to Funston or such Affiliate a stock certificate representing the Put Shares (free and clear of any rights, restrictions, liens or encumbrances whatever) purchased by Funston or such Affiliate together with a fully-executed stock power. Notwithstanding the foregoing, if Holdings exercises the Put Right in connection with a Company Sale, the exercise of the Put Right shall be effective, and the sale of the Aggregate Shares pursuant to the Put Right to Funston or an Affiliate of Funston at a purchase price of $6.00 per share in cash (subject to pro rata
2
adjustment for stock splits and combinations, recapitalizations, stock dividends and similar transactions) shall be subject to and take place immediately prior to, the consummation of the Company Sale, it being understood that if such Company Sale is terminated, the provisions of Section 2 and 4 shall apply until the next Restricted Period End Date occurs and thereby triggers a new Put Period consistent with the provisions of this Section 3.
4. Voting Agreement. Each of Holdings and TLF agrees during the Restricted Period to vote the Aggregate Shares (i) in favor of any proposal for which the Board has recommended a “For” vote, including a sale of, or acquisition of another business or company by, the Company, and (ii) against any proposal for which the Board has recommended an “Against” vote.
5. Representations and Warranties of TLF and Holdings. Each of TLF and Holdings hereby represents and warrants to the Company that:
(a) each has the full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby, and that all requisite authorizations, consents and government approvals applicable to Holdings and TLF and associated with the Transfer, and any other transaction contemplated by this Agreement, have been obtained;
(b) Holdings is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana and is duly authorized, qualified or licensed to do business as a foreign corporation and in good standing in each of the jurisdictions in which Holdings is required to be so qualified, other than jurisdictions in which the failure to so qualify would not have a material adverse effect on Holdings or the ability of TLF and Holdings to effect the Transfer; the Transfer, when effected in accordance with this Agreement, shall have been effected in accordance with all applicable law;
(c) this Agreement constitutes a legal, valid and binding obligation of each of TLF and Holdings enforceable against each in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally, general equitable principles, the discretion of courts in granting equitable remedies and matters of public policy;
(d) the execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly approved in accordance with applicable law and do not and will not violate any obligation of each of TLF, Holdings, or any of their respective Affiliates or Associates;
(e) prior to the Transfer, TLF (and no other Affiliate or Associate of TLF) owned Beneficially all of the Aggregate Shares free and clear of any rights, restrictions, liens or encumbrances whatsoever; the Aggregate Shares represent all of the equity interests in the Company Beneficially owned by Holdings, TLF and their respective Affiliates and each owns no other (i) interest classified as an equity security of the Company, (ii) securities convertible into or exercisable or exchangeable for any equity security of the Company, or (iii) subscriptions, calls, warrants, options or commitments of any kind or character relating to, or entitling the purchase or acquisition of any equity security of the Company, other than equity compensation awards for Board or other service to the Company approved by the Board; and
(f) there are no claims, actions, causes of action, demands, lawsuits, arbitrations, inquiries, audits, notices of violation, proceedings, litigation, citations, summonses, subpoenas or investigations of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity (each, an “Action”), pending or, to the knowledge of Holdings and TLF , threatened that challenge, seek to prevent, enjoin or otherwise delay the Transfer or the transactions contemplated by this Agreement.
(g) all material ownership and management relationships among Biglari, TLF and Holdings as of the date hereof are as set forth in the filings with respect to Holdings with the U.S. Securities and Exchange Commission as of the date hereof.
6. Representations and Warranties of Funston. Funston has the full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes a legal, valid and binding obligation of Funston, enforceable against him in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally, general equitable principles, the discretion of courts in granting equitable remedies and matters of public policy. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein do not and will not violate any obligation of Funston. Funston will acquire the Put Shares for his own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person or entity will have a direct or indirect beneficial interest in the Put Shares. Funston has the financial ability to bear the economic risk of his investment, has adequate
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means for providing for his current needs and personal contingencies and has no need for liquidity with respect to his investment in the Company. Funston has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Put Shares. At all times during the term of this Agreement, Funston will have sufficient, liquid funds necessary to purchase the Aggregate Shares for the aggregate Put Purchase Price.
7. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules in that or any other jurisdiction. Each of the parties hereto knowingly, voluntarily and intentionally waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement. The parties agree, solely in respect of the interpretation and enforcement of the provisions of this Agreement, to submit to the exclusive jurisdiction of, and to waive any objection as to venue in, the federal or state courts located in the County of New Castle, State of Delaware.
8. Amendments; Modifications; Supplements. This Agreement and any other documents executed in connection herewith or referred to herein set forth the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, inducements, conditions or understandings, oral or written, or express or implied, with respect to the subject matter hereof. Holdings shall be obligated for, and promptly reimburse Funston, for all documented out-of-pocket legal costs incurred by Funston (not to exceed $10,000) in connection with this Agreement. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by all parties hereto.
9. No Waiver; Cumulative Remedies. No failure or delay on the part of either party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy hereunder. No waiver of any provision hereof shall be effective unless the same shall be in writing and signed by the party granting such waiver. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
10. Headings. The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
11. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
12. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all the signatures on such counterparts appeared on one document, and each such counterpart shall be deemed to be an original. Delivery of a photocopy or facsimile of an executed counterpart of a signature page to this Agreement shall be as effective as a delivery of a manually executed counterpart of this Agreement.
13. Binding Effect; Assignment. This Agreement is binding upon and inures to the benefit of the parties hereto, and their respective successors and assigns, except that neither party shall have the right to assign its rights or obligations hereunder to a third party without the other party’s prior written consent.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
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/s/ Lance Funston
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Lance Funston
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[Signature Page to Agreement]
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THE LION FUND, L.P.
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|||||
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By:
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Biglari Capital Corp., its general partner
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By:
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/s/ Sardar Biglari
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Name:
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Sardar Biglari
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Title:
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Chairman and Chief Executive Officer
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BIGLARI HOLDINGS INC.
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|||||
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By:
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/s/ Sardar Biglari
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||||
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Name:
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Sardar Biglari
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||||
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Title:
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Chairman and Chief Executive Officer
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[Signature Page to Agreement]
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Exhibit 99.2
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including, to the extent applicable, amendments thereto) with respect to the shares of Common Stock, no par value, of CCA Industries, Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.
Dated: June 16, 2016
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BIGLARI HOLDINGS INC.
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By:
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/s/ Sardar Biglari
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Sardar Biglari, Chief Executive Officer
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/s/ Sardar Biglari
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SARDAR BIGLARI
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THE LION FUND, L.P.
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By:
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Biglari Capital Corp.
General Partner
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By:
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/s/ Sardar Biglari
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||
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Sardar Biglari, Chief Executive Officer
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BIGLARI CAPITAL CORP.
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By:
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/s/ Sardar Biglari
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||
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Sardar Biglari, Chief Executive Officer
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