VOTING SECURITIES AND PRINCIPAL HOLDERS
As of March 31, 2003, the Company had outstanding 8,484,200
shares of Common Stock, which are the only outstanding voting securities
of the Company.
The following table sets forth, as of March 31, 2003, the
beneficial ownership of Common Stock with respect to (i) each person who
was known by the Company to own beneficially more than 5% of the
outstanding shares of Common Stock, (ii) each director and nominee for
director, (iii) each executive officer of the Company named in the
Summary Compensation Table of this proxy statement and (iv) directors
and executive officers as a group.
Amount and
Nature of Percent
Beneficial of
Name and Address of Beneficial Owner(1) Ownership(2) Class
------------------------------------------------------- ------------ -------
Andrew A. Wiederhorn 2,685,411 (3) 30.0 %
Tiffany A. Wiederhorn 2,685,411 (4) 30.0
TTMM, L.P. 951,709 (5) 11.2
Clarence B. Coleman and Joan F. Coleman 935,089 (6) 11.0
Donald J. Berchtold 597,292 (7) 7.0
Robert G. Rosen 590,745 (8) 6.8
Richard Terrell 562,100 (9) 6.6
Patrick Terrell. 470,000 (10) 5.5
Jordan D. Schnitzer 448,635 5.3
Lawrence Mendelsohn 175,000 (11) 2.0
Don H. Coleman. 41,008 (12) *
Christopher T. DeWolfe 25,000 *
R. Scott Stevenson. 8,675 (13) *
Matthew Green. 7,500 (14) *
David Dale-Johnson. 7,008 (15) *
K. Kenneth Kotler. 6,000 (16) *
M. Ray Mathis. 5,000 (17) *
All executive officers and directors as a group (10 3,128,102 (18) 33.5 %
persons)
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º (1)
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º The address for each stockholder is c/o Fog Cutter Capital
Group Inc., 1410 SW Jefferson Street, Portland, Oregon 97201-2548.
º (2)
º Beneficial ownership is determined in accordance with the rules of
the Securities and Exchange Commission. Shares of Common Stock
subject to options or warrants exercisable within 60 days of
March 31, 2003 are deemed outstanding for computing the percentage
beneficially owned by the person or group holding such options or
warrants, but are not deemed outstanding for computing the
percentage of any other person. Except as noted, each stockholder
has sole voting power and sole investment power with respect to all
shares beneficially owned by such stockholder.
º (3)
º Based upon information obtained from a Schedule 13D filed with the
Securities and Exchange Commission, as amended. Includes 643,755
shares of Common Stock owned by Mr. Wiederhorn's spouse, Tiffany
Wiederhorn, 951,709 shares of Common Stock owned by TTMM, L.P. (a
partnership controlled by Mr. Wiederhorn's spouse) and 13,826
shares of Common Stock owned by W.M. Starlight Investments, LLC (of
which Mr. Wiederhorn's spouse is the manager and majority owner).
Mr. Wiederhorn shares voting power and may be deemed to share
investment power with respect to the shares of Common Stock owned
by such persons and may be deemed to be the beneficial owner of all
such shares. Mr. Wiederhorn disclaims beneficial ownership of such
shares. Also includes 52,000 shares of Common Stock outstanding and
472,500 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable held directly by
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Mr. Wiederhorn, over which Mr. Wiederhorn shares voting power with
Ms. Wiederhorn and has sole investment power. Also includes 423,245
shares of Common Stock over which Mr. Wiederhorn shares voting
power pursuant to the Rosen Agreement described under "Put Option
Agreements-Rosen Agreement" immediately below. Mr. Wiederhorn may
be deemed to be the beneficial owner of such shares. Mr. Wiederhorn
disclaims beneficial ownership of such shares. Also includes an
aggregate of 128,376 shares of Common Stock owned by Mr. and
Ms. 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 voting or
investment power over such shares, Mr. Wiederhorn may be deemed to
share voting and/or investment 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. Excludes 112,500 shares of Common Stock which were
allocated to Mr. Wiederhorn by a Long Term Vesting Trust
established for the benefit of certain employees and directors of
the Company (the "Trust") but which will not have vested or be
deliverable to Mr. Wiederhorn within 60 days of March 31, 2003.
Excludes the remaining 512,500 shares of Common Stock held in the
Trust which have been allocated to other employees or directors or
have not been allocated. Although Mr. Wiederhorn acts as a trustee
for the Trust, he does not have any beneficial ownership, voting
power or investment power over the shares of Common Stock remaining
in the Trust or allocated to other employees or directors.
º (4)
º Based upon information obtained from a Schedule 13D filed with the
Securities and Exchange Commission, as amended. Includes an
aggregate of 524,500 shares of Common Stock beneficially owned by
Andrew A. Wiederhorn, including 472,500 shares which are issuable
to Mr. Wiederhorn upon the exercise of outstanding options
currently exercisable, 951,709 shares of Common Stock owned by
TTMM, L.P. and 13,826 shares of Common Stock W.M. Starlight
Investments, LLC. Ms. Wiederhorn shares voting power and may be
deemed to share investment power with respect to the shares of
Common Stock owned by such persons and may be deemed to be the
beneficial owner of all such shares. Ms. Wiederhorn disclaims
beneficial ownership of such shares of Common Stock. Also includes
423,245 shares of Common Stock over which Ms. Wiederhorn may be
deemed to share voting power pursuant to the Rosen Agreement
described under "Put Option Agreements-Rosen Agreement" immediately
below. Ms. Wiederhorn may be deemed to be the beneficial owner of
such shares. Ms. Wiederhorn disclaims beneficial ownership of such
shares. Also includes 128,376 shares of Common Stock owned by
Mr. and Ms. 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 Ms. Wiederhorn any voting or
investment power over such shares, Ms. Wiederhorn may be deemed to
share voting and/or investment power over such shares of Common
Stock and may be deemed to be the beneficial owner of such shares.
Ms. Wiederhorn disclaims beneficial ownership of such shares.
º (5)
º TTMM, L.P. shares voting power with Andrew Wiederhorn and Tiffany
Wiederhorn over such shares.
º (6)
º Based upon information obtained from a Schedule 13D filed with the
Securities and Exchange Commission, as amended.
º (7)
º Includes 7,500 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable. Also includes 134,636
shares of Common Stock held by Mr. Berchtold as trustee for certain
minor children, over which Mr. Berchtold may be deemed to share
voting and investment power. Mr. Berchtold disclaims beneficial
ownership of such shares. Also includes 382,170 shares of Common
Stock owned by an entity which is managed by Mr. Berchtold.
Mr. Berchtold may be deemed to share voting and/or investment power
over such shares. Mr. Berchtold disclaims beneficial ownership of
such shares. Also includes 2,462 shares of Common Stock held by
Mr. Berchtold's spouse, and 1,984 shares of Common Stock held by
Mr. Berchtold's wife as trustee for certain minor children, over
which Mr. Berchtold may be deemed to share voting and
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investment power. Mr. Berchtold disclaims beneficial ownership of
such shares. Excludes 5,000 shares of Common Stock which were
allocated to Mr. Berchtold by the Trust but which will not have
vested or be deliverable to Mr. Berchtold within 60 days of
March 31, 2003.
º (8)
º Includes 167,500 shares of Common Stock issuable upon the exercise
of outstanding options currently exercisable.
º (9)
º Based upon information obtained from a Schedule 13G filed with the
Securities and Exchange Commission. Consists of (i) 537,600 shares
of Common Stock held directly by Mr. Richard Terrell, (ii) 9,500
shares of Common Stock held by a trust, of which Mr. Terrell is
trustee, for Kimberly Terrell, a minor child, of which shares
Mr. Terrell disclaims beneficial ownership, and (iii) 15,000 shares
of Common Stock held by a trust, of which Mr. Terrell is trustee,
for Meagan Terrell, a minor child, of which shares Mr. Terrell
disclaims beneficial ownership.
º (10)
º Mr. Patrick Terrell may be deemed to share voting and investment
power over such shares with his spouse.
º (11)
º Based upon information obtained from a Schedule 13D filed with the
Securities and Exchange Commission, as amended. Includes 175,000
shares of Common Stock issuable upon the exercise of outstanding
options currently exercisable. Mr. Mendelsohn was originally
granted options to purchase 350,000 shares of Common Stock as the
President of the Company. On August 30, 2002, Mr. Mendelsohn
resigned as the President (and also resigned from his position as a
director). Upon such resignation, Mr. Mendelsohn's options to
purchase 175,000 shares of Common Stock terminated, leaving him
with options to purchase 175,000 shares of Common Stock. Excludes
525,000 shares of Common Stock held in the Trust. Mr. Mendelsohn
resigned as a trustee of the Trust and no shares have been granted
or allocated by the Trust to Mr. Mendelsohn. Mr. Mendelsohn is no
longer eligible for grants under the terms of the Trust. Although
Mr. Mendelsohn acted as a trustee for the Trust, he did not and
does not have any beneficial ownership, voting power or investment
power with respect to the 625,000 shares of Common Stock in the
Trust.
º (12)
º Includes 500 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable.
º (13)
º Includes 7,500 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable.
º (14)
º Consists of 7,500 shares of Common Stock issuable upon the exercise
of outstanding options currently exercisable.
º (15)
º Includes 6,000 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable.
º (16)
º Includes 1,000 shares of Common Stock issuable upon the exercise of
outstanding options currently exercisable.
º (17)
º Consists of 5,000 shares of Common Stock issuable upon the exercise
of outstanding options currently exercisable.
º (18)
º Includes 842,500 shares of Common Stock issuable upon the exercise
of outstanding options currently exercisable.
º *
º Less than one percent.
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Put Option Agreements
Rosen Agreement On January 28, 2002, Andrew A. Wiederhorn
entered into a Stock Option and Voting Agreement (the "Rosen Agreement")
by and among Andrew A. Wiederhorn, Robert G. Rosen and Valerie Rosen, as
joint tenant with Robert G. Rosen (Valerie Rosen, together with Robert
G. Rosen, the "Rosen Agreement Stockholders"), Robert G. Rosen, as Agent
for the Rosen Agreement Stockholders, and Tiffany Wiederhorn solely with
respect to certain payment obligations. The Rosen Agreement grants
Mr. Wiederhorn the right to vote or direct the vote of all of the shares
held by each such Rosen Agreement Stockholder, which number 423,245 in
the aggregate (the "Rosen Shares"). The Rosen Agreement allows
Mr. Wiederhorn to direct the voting of the Rosen Shares at his
discretion at any annual and special meetings of the stockholders of the
Company and in written consents of stockholders in lieu of a meeting of
stockholders. In exchange for the voting rights over the Common Stock
held by the Rosen Agreement Stockholders, Mr. Wiederhorn granted each
Rosen Agreement Stockholder a Put Option (as defined in the Rosen
Agreement) whereupon each Rosen Agreement Stockholder may require
Mr. Wiederhorn to purchase such Rosen Agreement Stockholder's shares in
a specified time period at a price determined from the book value of the
Company at the month end prior to the time of exercise of the Put
Option.
Wiederhorn Assignment and Voting Agreement Pursuant to an
Assignment and Voting Agreement, dated as of February 20, 2002 (the
"Wiederhorn Assignment and Voting Agreement"), by and among Tiffany
Wiederhorn, TTMM, L.P. and WM Starlight Investments, LLC (collectively,
the "Tiffany Wiederhorn Entities") and Mr. Wiederhorn. Pursuant to the
Wiederhorn Assignment and Voting Agreement, the Tiffany Wiederhorn
Entities agreed to vote their Common Stock in the manner specified by
Mr. Wiederhorn during the term of the Wiederhorn Assignment and Voting
Agreement (up to five years).
The foregoing summaries of the Rosen Agreement and the
Wiederhorn Assignment and Voting Agreement are qualified in their
entirety by reference to such agreements, which were filed as exhibits
to Schedules 13D, as amended, filed with the Securities and Exchange
Commission.
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