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EXHIBIT (C)(12)
PURCHASE AGREEMENT
by and among
JILLIAN'S ENTERTAINMENT HOLDINGS, INC.,
X.X. CHILDS EQUITY PARTNERS, L.P.
and
THE OTHER SIGNATORIES HERETO
dated as of April [ ], 1997
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TABLE OF CONTENTS
PURCHASE AGREEMENT
ARTICLE I
PURCHASE OF PREFERRED STOCK; EXCHANGE
OF COMMON STOCK; CONVERSION OF OPTIONS
1.1 Preferred Stock to be Sold.................................................................. 2
1.2 Exchange of Common Stock; Receipt of Options................................................ 2
1.3 Rollover of Certain Options................................................................. 2
1.4 Cashout of Certain Options. ................................................................ 3
1.5 Closing Deliveries.......................................................................... 3
1.6 Closing..................................................................................... 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
2.1 Organization of Holdings and Sub............................................................ 5
2.2 Capital Structure of Holdings and Sub....................................................... 5
2.3 Authority; No Conflict; Required Filings and
Consents.................................................................................... 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF JWC
3.1 Organization of JWC......................................................................... 8
3.2 Authority; No Conflict; Required Filings and
Consents.................................................................................... 8
3.3 Authorization of Representative ............................................................ 9
3.4 Acquisition of Shares for Investment........................................................ 9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE CONTINUING SHAREHOLDERS,
THE OTHER OPTION HOLDERS AND THE BORROWERS
4.1 Authority; No Conflict; Required Filings and
Consents.................................................................................... 11
4.2 Acquisition of Shares of Holdings Common and
Holdings Options for Investment............................................................. 12
4.3 Title to Shares of Jillian's Common......................................................... 13
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE CONTINUING
OPTION HOLDERS, THE NON-CONTINUING OPTION HOLDERS
AND THE CONTINUING WARRANT HOLDERS
5.1 Authority; No Conflict; Required Filings and
Consents......................................................................................... 13
5.2 Acquisition of Holdings Management Options and
Holdings Warrants for Investment................................................................. 15
5.3 Title to Jillian's Management Options and
Jillian's Warrants............................................................................... 16
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF JILLIAN'S
6.1 Organization of Jillian's ....................................................................... 16
6.2 Authority; No Conflict; Required Filings and
Consents ........................................................................................ 17
ARTICLE VII
COVENANTS
7.1 Legal Conditions................................................................................. 18
7.2 Consents and Approvals........................................................................... 18
7.3 Reasonable Efforts............................................................................... 18
7.4 JWC Agreements................................................................................... 19
7.5 Continuing Shareholder Agreements; Other Option
Holder Agreements................................................................................ 19
7.6 Continuing Option Holder Agreements.............................................................. 19
7.7 Holdings Agreements.............................................................................. 19
7.8 Debt Instruments................................................................................. 19
7.9 No Solicitation.................................................................................. 20
7.10 Continuing Warrant Holders ...................................................................... 21
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
8.1 Conditions to Each Party's Obligation............................................................ 21
8.2 Additional Conditions to Obligations of Hold-
ings and JWC.................................................................................... 22
8.3 Additional Conditions to Obligations of
Jillian's, the Continuing Shareholders, the
Other Option Holders, the Continuing Option
Holders, the Non-Continuing Option Holders and
the Borrowers.................................................................................... 22
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ARTICLE IX
TERMINATION
9.1 Termination...................................................................................... 23
9.2 Effect of Termination......................................................................... 21, 23
ARTICLE X
SURVIVAL
10.1 Survival......................................................................................... 24
ARTICLE XI
MISCELLANEOUS
11.1 Amendment........................................................................................ 24
11.2 Extension; Waiver................................................................................ 24
11.3 Notices.......................................................................................... 24
11.4 Interpretation................................................................................... 26
11.5 Counterparts..................................................................................... 26
11.6 Entire Agreement................................................................................. 26
11.7 Governing Law.................................................................................... 26
11.8 Severability..................................................................................... 26
11.9 Assignment....................................................................................... 27
Schedule 1 Continuing Shareholders; Other Option
Holders
Schedule 2 Continuing Option Holders
Schedule 3 Continuing Warrant Holders
Exhibit A Form of Holdings Option
Exhibit B Form of Holdings Warrant
Exhibit C Form of IP Promissory Note
Exhibit D Form of Xxxxxx Promissory Note
Exhibit E Form of Xxxx Promissory Note
Exhibit F Matters to be Covered by Opinion
of Counsel to Continuing Share-
holders
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PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made and
entered into as of this [ ] day of April, 1997 by and among Jillian's
Entertainment Holdings, Inc., a Delaware corporation ("Holdings"), X.X. Childs
Equity Partners, L.P., a Delaware limited partnership ("JWC"), [
] (the "Representative"), as representative of, and attorney-in-fact for,
certain related persons or entities of JWC (the "Group", and together with JWC,
the "JWC Group"), Jillian's Entertainment Corporation, a Florida corporation
("Jillian's"), those persons listed as Continuing Shareholders on the
signature pages hereto (the "Continuing Shareholders"), those persons listed as
Other Option Holders on the signature pages hereto ("Other Option Holders"),
those persons listed as Continuing Option Holders on the signature pages hereto
(the "Continuing Option Holders"), those persons listed as Non-Continuing
Option Holders on the signature pages hereto (the "Non-Continuing Option
Holders"), those persons listed as Borrowers on the signature pages hereto (the
"Borrowers") and those persons listed as Continuing Warrant Holders on the
signature pages hereto (the "Continuing Warrant Holders").
WHEREAS, Holdings, Jillian's Entertainment Acquisition
Corporation, a Florida corporation and a wholly owned subsidiary of Holdings
("Sub"), and Jillian's are executing, simultaneously with the execution of
this Agreement, an Agreement and Plan of Merger (the "Merger Agreement")
whereby, at the Effective Time (as defined therein), Sub will merge with and
into Jillian's with Jillian's becoming a wholly owned subsidiary of Holdings;
and
WHEREAS, pursuant to the terms of the Merger Agreement, it is
a condition of the obligations of the parties thereto that the transactions
contemplated by this Agreement shall have been consummated prior to the
Effective Time;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and for other good and valuable consideration, and in-
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tending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
PURCHASE OF PREFERRED STOCK; EXCHANGE
OF COMMON STOCK; TREATMENT OF OPTIONS
1.1 Preferred Stock to be Sold. Upon the terms and subject
to the conditions contained herein, at the Closing (as hereinafter defined),
Holdings shall sell and transfer to the JWC Group, and the JWC Group shall
purchase and accept from Holdings, 12,872,774 shares of Series A 12% Cumulative
Convertible Accruing Pay-In-Kind Preferred Stock, par value $.001 per share, of
Holdings (the "Preferred Stock"). The purchase price for the Preferred
Stock, payable by the JWC Group to Holdings, in immediately available funds, at
the Closing, is $12,000,000.
1.2 Exchange of Common Stock; Receipt of Options. Upon the
terms and subject to the conditions contained herein, at the Closing, (i) each
of the Continuing Shareholders shall transfer to Holdings all of the shares
of common stock, $.001 par value per share, of Jillian's ("Jillian's Common")
owned by such Continuing Shareholder (as set forth on Schedule 1 hereto) and
Holdings shall accept such shares of Jillian's Common and issue to each of the
Continuing Shareholders shares of common stock, par value $.001 per share, of
Holdings ("Holdings Common") and options to purchase shares of Holdings Common,
substantially in the form of Exhibit A hereto ("Holdings Options"), as set
forth on Schedule 1 hereto and (ii) Holdings shall issue to each of the Other
Option Holders Holdings Options, as set forth on Schedule 1 hereto. After the
Effective Time, each Holdings Option shall be exercisable upon the terms and
conditions set forth in the Holdings 1997 Non-Qualified Stock Option Plan,
substantially in the form of Exhibit C to the Merger Agreement (the "Holdings
Stock Option Plan").
1.3 Rollover of Certain Options. Upon the terms and subject
to the conditions contained herein, at the Closing, each of the Continuing
Option Holders shall deliver to Holdings each option owned by such Continuing
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Option Holder (whether or not then vested or exercisable) to purchase shares of
Jillian's Common (a "Jillian's Management Option") granted under the
Consolidated Stock Option Plan, the 1994 Director, Adviser and Key Employee
Stock Option Plan or the 1995 Director, Adviser and Key Employee Stock Option
Plan, (collectively, the "Jillian's Stock Option Plans"), and Holdings shall
accept such Jillian's Management Options and issue to each of the Continuing
Option Holders options to purchase shares of Holdings Common, substantially in
the form of Exhibit D to the Merger Agreement ("Holdings Management Options"),
as set forth on Schedule 2 hereto. Each Holdings Management Option will be
exercisable for a number of shares of Holdings Common equal to the number of
shares of Jillian's Common subject to the Jillian's Management Option for which
it was exchanged, at an exercise price equal to the exercise price per share of
such Jillian's Management Option. After the Effective Time, each Jillian's
Management Option shall be cancelled, and each Holdings Management Option shall
be exercisable upon the terms and conditions set forth in the Holdings Stock
Option Plan.
1.4 Cashout of Certain Options. Upon the terms and subject
to the conditions contained herein, at the Closing each of the Non-Continuing
Option Holders shall deliver to Holdings each Jillian's Management Option owned
by such Non-Continuing Option Holder, and Holdings shall accept such Jillian's
Management Options and shall deliver to each of the Non-Continuing Option
Holders a lump sum cash payment for each such Jillian's Management Option equal
to the product of (i) the number of shares of Jillian's Common subject to such
Jillian's Management Option and (ii) the excess, if any, of the Merger
Consideration (as defined in the Merger Agreement) over the exercise price per
share of such Jillian's Management Option. After the Effective Time, each such
Jillian's Management Option shall be cancelled.
1.5 Closing Deliveries. At the Closing, (a) the JWC Group
shall deliver to Holdings, by wire transfer of immediately available funds
pursuant to the instructions of Holdings, $12,000,000, (b) Holdings shall
deliver to the JWC Group certificates evidencing 12,872,774 shares of
Preferred Stock, (c) the Continuing Shareholders shall each deliver to
Holdings certificates representing the shares of Jillian's Common owned by
such
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Continuing Shareholder, duly endorsed in blank or accompanied by appropriate
stock powers duly executed in blank, in proper form for transfer and with all
requisite stock transfer stamps, if any, attached or provided for, (d) Holdings
shall deliver to each of the Continuing Shareholders a certificate or
certificates evidencing shares of Holdings Common and Holdings Options as set
forth on Schedule 1 hereto, (e) Holdings shall deliver to each of the Other
Option Holders Holdings Options as set forth on Schedule 1 hereto, (f) the
Continuing Option Holders shall each deliver to Holdings the Jillian's
Management Options owned by such Continuing Option Holder, (g) Holdings shall
deliver to each of the Continuing Option Holders Holdings Management Options as
set forth on Schedule 2 hereto, (h) the Non-Continuing Option Holders shall
each deliver to Holdings the Jillian's Management Options owned by such
Non-Continuing Option Holder, (i) Holdings shall deliver to each Non-Continuing
Option Holder the lump sum cash payment, if any, set forth in Section 1.4
applicable to such Non-Continuing Option Holder and (j) the parties shall
deliver such other instruments or documents as may be reasonably necessary to
carry out the transactions contemplated by this Agreement and to comply with
the terms hereof.
1.6 Closing. Subject to Article VII, the closing of the
transactions contemplated by this Agreement (the "Closing") shall take place
immediately prior to the Effective Time, on the later of (a) May 13, 1997 or
(b) the first business day after satisfaction or waiver of the latest to occur
of the conditions set forth in Article VII, at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, One Beacon Street, Boston, Massachusetts or on
such other date, or at such other time or place, as is agreed to in writing by
JWC and Jillian's. The date on which the Closing shall occur is referred to
herein as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings hereby represents and warrants to Jillian's, the
Continuing Shareholders and the Borrowers with respect to Sections 2.1 through
2.3 and to the Other Option Holders, the Continuing Option Holders, the Non-
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Continuing Option Holders and the Continuing Warrant Holders with respect to
Sections 2.1 through 2.3, except Section 2.2(d), as follows:
2.1 Organization of Holdings and Sub. Each of Holdings and
Sub is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, has all requisite
corporate power to own, lease and operate its property and to carry on its
business as now being conducted and is duly qualified or licensed to do
business and is in good standing as a foreign corporation in each jurisdic-
tion in which the failure to be so qualified or licensed would have or result
in a material adverse effect on the prospects, business, assets (including
intangible assets), properties, liabilities, results of operations or
condition (financial or otherwise) (a "Material Adverse Effect") of Holdings
(taken separately) or Holdings and Sub (taken as a whole). Except for Sub,
Holdings does not, directly or indirectly, own any equity or similar interest
in, or any interest convertible into or exchangeable or exercisable for any
equity or similar interest in, any corporation, partnership, joint venture or
other business association or entity.
2.2 Capital Structure of Holdings and Sub.
(a) The authorized capital stock of Holdings
consists of 55,000,000 shares of Holdings Common and 42,000,000 shares of
Preferred Stock. As of the date hereof, one share of Holdings Common is issued
and outstanding and is registered in the name of JWC, such share being duly
authorized, validity issued, fully paid and nonassessable and no shares of
Preferred Stock are issued and outstanding. It is the intent of the parties
that such share of Holdings Common be surrendered by JWC at the Effective Time
in exchange for one dollar.
(b) The authorized capital stock of Sub consists of
1,000 shares of common stock, par value $.001 per share, of which 10 shares are
issued and outstanding, all of which are duly authorized, validly issued, fully
paid and nonassessable.
(c) Except as set forth in Section 2.2 (a) and (b)
and as otherwise explicitly set forth in this Agreement, there are no equity
securities of any class of
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Holdings or Sub or any security exchangeable into or exercisable for such
equity securities, issued, reserved for issuance or outstanding. There are no
options, warrants, calls, rights, commitments or agreements of any character
to which Holdings or Sub is a party, or by which Holdings or Sub is bound,
obligating Holdings or Sub to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock of Holdings or Sub or
obligating Holdings or Sub to grant, extend or accelerate the vesting or enter
into any such option, warrant, call, right, commitment or agreement. There are
no voting trusts, proxies or other agreements or understandings with respect to
the shares of capital stock of Holdings. There are no obligations, contingent
or otherwise, of Holdings or Sub to repurchase, redeem or otherwise acquire any
shares of capital stock of Holdings or Sub or to provide funds to or make any
investment (in the form of a loan, capital contribution or otherwise) in any
such subsidiary or any other entity.
(d) All of the shares of Preferred Stock and
Holdings Common to be issued pursuant to the terms hereof have been duly
authorized by all necessary corporate action and will, when issued in
accordance with this Agreement, be validly issued, fully paid and
non-assessable and free of preemptive rights, other than restrictions imposed
by the Certificate of Incorporation of Holdings, as amended (the "Holdings
Certificate of Incorporation"), the By-Laws of Holdings, as amended (the
"Holdings By-Laws"), or the Stockholders Agreement (as defined in the Merger
Agreement).
2.3 Authority; No Conflict; Required Filings and Consents.
(a) Holdings has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Holdings. This
Agreement has been duly and validly executed and delivered by Holdings and
constitutes a valid and binding obligation of Holdings, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
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other similar laws now or hereafter in effect relating to creditors' rights and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(b) The execution and delivery of this Agreement by
Holdings does not, and the consummation of the transactions contemplated by
this Agreement will not, (i) conflict with, or result in any violation or
breach of any provision of the Holdings Certificate of Incorporation or the
Holdings By-laws or (ii) result in any violation or breach of, or constitute
(with or without notice or lapse of time, or both) a default (or give rise to a
right of termination, cancellation or acceleration of any obligation or loss of
any benefit) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which Holdings or Sub is a party or by which Holdings or Sub or
any of their properties or assets may be bound, except in the case of clause
(ii) for any such violations, breaches, defaults, terminations,
cancellations, accelerations or conflicts which would not, in the aggregate,
have or result in a Material Adverse Effect on Holdings (taken separately) or
Holdings and Sub (taken as a whole) or impair the ability of Holdings to
consummate the transactions contemplated by this Agreement.
(c) No consent, approval, order or authorization
of, or registration, declaration or filing (collectively, "Consents") with any
person, including, without limitation, any court, administrative agency or
commission or other governmental authority or instrumentality ("Governmental
Authority") is required by or with respect to Holdings or Sub in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for (i) such Consents as may be
required under applicable state securities laws and (ii) such other Consents
(other than those of a Governmental Entity) which, if not obtained or made,
would not, individually or in the aggregate, have a Material Adverse Effect on
Holdings (taken individually) or Holdings and Sub (taken as a whole) or impair
the ability of Holdings to consummate the transactions contemplated by this
Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF JWC
JWC hereby represents and warrants to Jillian's, the
Continuing Shareholders, the Other Option Holders, the Continuing Option
Holders, the Non-Continuing Option Holders, the Borrowers and the Continuing
Warrant Holders, on behalf of itself and the JWC Group, as follows:
3.1 Organization of JWC. JWC is a limited partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, has all requisite power to own, lease and
operate its property and to carry on its business as now being conducted and is
duly qualified or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which the failure to be so qualified or
licensed would have or result in a Material Adverse Effect on JWC.
3.2 Authority; No Conflict; Required Filings and Consents.
(a) JWC has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all
necessary action on the part of JWC. This Agreement has been duly and validly
executed and delivered by JWC and constitutes a valid and binding obliga-
tion of JWC, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity
or at law).
(b) The execution and delivery of this Agreement by
JWC does not, and the consummation of the transactions contemplated by this
Agreement will not, (i) conflict with, or result in any violation or breach of
any provision of the organizational documents of JWC, or
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(ii) result in any violation or breach of, or constitute (with or without
notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which JWC is a party or by which JWC or any of its properties or
assets may be bound, except in the case of clause (ii) for any such violations,
breaches, defaults, terminations, cancellations, accelerations or conflicts
which would not, in the aggregate, have or result in a Material Adverse Effect
on JWC or impair the ability of JWC to consummate the transactions contemplated
by this Agreement.
(c) No Consent of any person, including without
limitation, any Governmental Entity, is required by or with respect to JWC in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for (i) such
Consents as may be required under applicable state securities laws and (ii)
such other Consents (other than those of a Governmental Entity) which, if not
obtained or made, would not, individually or in the aggregate, have a Material
Adverse Effect on JWC or impair the ability of JWC to consummate the
transactions contemplated by this Agreement.
3.3 Authorization of Representative. The Representative is
duly authorized to act as representative of, and attorney-in-fact for, the
Group pursuant to [ ]. This Agreement has been duly and validly executed
and delivered by the Representative and constitutes a valid and binding
obligation of the Group, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity
or at law).
3.4 Acquisition of Shares for Investment. The JWC Group is
acquiring the shares of Preferred Stock for its own account for investment
purposes and not (a) as nominee or agent for any other person, firm,
corporation
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or entity, or (b) with a view toward, or for sale in connection with, any
distribution thereof or (c) with any present intention of distributing or
selling any of the shares of Preferred Stock. The JWC Group agrees that the
shares of Preferred Stock may only be sold, transferred, offered for sale,
pledged, hypothecated or otherwise disposed of if registered under applicable
law (including without limitation the Securities Act of 1933, as amended (the
"Securities Act")) or if so sold, transferred, offered for sale, pledged,
hypothecated or otherwise disposed of pursuant to an available exemption from
all applicable registration requirements. The JWC Group has such sufficient
knowledge and experience in financial and business matters that it is capable
of evaluating the merits and risks of its investment, and the JWC Group
understands and is able to bear any economic risks associated with such
investment for an indefinite period of time, inasmuch as the shares of
Preferred Stock have not been, and may not in the foreseeable future be, regis-
tered under the Securities Act, and including the risk of the loss of the JWC
Group's entire investment in such shares. The JWC Group and the JWC Group's
attorneys, accountants and other representatives and advisors, if any, (i)
have been given an opportunity to ask, and have to the extent that the JWC
Group has considered necessary, asked questions of, and have received answers
from, representatives of Holdings and Jillian's concerning the terms of this
investment and the affairs of Holdings and Jillian's; and (ii) have been given
or afforded access to all documents, records, books and additional information
which the JWC Group has requested regarding such matters.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE CONTINUING SHAREHOLDERS,
THE OTHER OPTION HOLDERS AND THE BORROWERS
Each of the Continuing Shareholders, the Other Option Holders
and the Borrowers represents and warrants to Holdings and the JWC Group as
follows, except that only the Continuing Shareholders represent and warrant
with respect to Section 4.3:
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4.1 Authority; No Conflict; Required Filings and Consents.
(a) Such Continuing Shareholder, Other Option
Holder or Borrower has all requisite power and authority and is legally
competent to enter into this Agreement and to consummate the transaction
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such Continuing Shareholder, Other
Option Holder or Borrower. This Agreement has been duly and validly executed
and delivered by such Continuing Shareholder, Other Option Holder or Borrower
and constitutes a valid and binding obligation of such Continuing Shareholder,
Other Option Holder or Borrower, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights and by general equitable
principles (regardless of whether enforceability is considered in a
proceeding in equity or at law).
(b) The execution and delivery of this Agreement by
such Continuing Shareholder, Other Option Holder or Borrower does not, and the
consummation of the transactions contemplated by this Agreement will not,
result in any violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any benefit) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, contract or other agreement, instrument or obligation to
which such Continuing Shareholder, Other Option Holder or Borrower is a party
or by which such Continuing Shareholder, Other Option Holder or Borrower or any
of its properties or assets may be bound, except for any such violations,
breaches, defaults, terminations, cancellations, accelerations or conflicts
which would not, in the aggregate, have or result in a Material Adverse Effect
on such Continuing Shareholder, Other Option Holder or Borrower or impair the
ability of such Continuing Shareholder, Other Option Holder or Borrower to
consummate the transactions contemplated by this Agreement.
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(c) No Consent of any person, including without
limitation, any Governmental Entity, is required by or with respect to such
Continuing Shareholder, Other Option Holder or Borrower in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for (i) such Consents as may be
required under applicable state securities laws and (ii) such other Consents
(other than those of a Governmental Entity) which, if not obtained or made,
would not, individually or in the aggregate, have a Material Adverse Effect on
such Continuing Shareholder, Other Option Holder or Borrower or impair the
ability of such Continuing Shareholder, Other Option Holder or Borrower to
consummate the transactions contemplated by this Agreement.
4.2 Acquisition of Shares of Holdings Common and Holdings
Options for Investment. Such Continuing Shareholder, Other Option Holder or
Borrower is acquiring shares of Holdings Common or Holdings Options for its own
account for investment purposes and not (a) as nominee or agent for any other
person, firm, corporation or entity, or (b) with a view toward, or for sale in
connection with, any distribution thereof or (c) with any present intention of
distributing or selling any shares of Holdings Common or Holdings Options.
Such Continuing Shareholder, Other Option Holder or Borrower agrees that
shares of Holdings Common and Holdings Options may only be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of if
registered under applicable law (including without limitation the Securities
Act) or if so sold, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of pursuant to an available exemption from all applicable
registration requirements. Such Continuing Shareholder, Other Option Holder
or Borrower has such sufficient knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment, and such Continuing Shareholder, Other Option Holder or Borrower
understands and is able to bear any economic risks associated with such
investment for an indefinite period of time, inasmuch as the shares of Holdings
Common and the Holdings Options have not been, and may not in the foreseeable
future be, registered under the Securities Act, and including the risk of the
loss of such Continuing Shareholder's, Other Option Holder's or Borrower's
entire investment in shares of
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Holdings Common or Holdings Options. Such Continuing Shareholder, Other Option
Holder or Borrower and such Continuing Shareholder's, Other Option Holder's or
Borrower's attorneys, accountants and other representatives and advisors, if
any, (i) have been given an opportunity to ask, and have to the extent that
such Continuing Shareholder, Other Option Holder or Borrower has considered
necessary, asked questions of, and have received answers from, representatives
of Holdings and Jillian's concerning the terms of this investment and the
affairs of Holdings and Jillian's; and (ii) have been given or afforded access
to all documents, records, books and additional information which such
Continuing Shareholder, Other Option Holder or Borrower has requested regarding
such matters.
4.3 Title to Shares of Jillian's Common. Such Continuing
Shareholder has, and upon consummation of the transactions contemplated by this
Agreement Holdings will acquire, good, valid and marketable title to the shares
of Jillian's Common to be received by Holdings from such Continuing Shareholder
pursuant to this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE CONTINUING
OPTION HOLDERS, THE NON-CONTINUING OPTION HOLDERS
AND THE CONTINUING WARRANT HOLDERS
Each of the Continuing Option Holders and the Non-Continuing
Option Holders (collectively, the "Jillian's Option Holders") and the
Continuing Warrant Holders represents and warrants to Holdings and the JWC
Group with respect to Sections 5.1 and 5.3 and each of the Continuing Option
Holders and the Continuing Warrant Holders represents and warrants to Holdings
and the JWC Group with respect to Section 5.2, as follows:
5.1 Authority; No Conflict; Required Filings and Consents.
(a) Such Jillian's Option Holder or Continuing
Warrant Holder has all requisite power and authority and is legally competent
to enter into this Agreement and to consummate the transactions contemplated
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hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Jillian's Option Holder or Continuing Warrant
Holder. This Agreement has been duly and validly executed and delivered by
such Jillian's Option Holder or Continuing Warrant Holder and constitutes a
valid and binding obligation of such Jillian's Option Holder or Continuing
Warrant Holder, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and by general equitable principles (regardless
of whether enforceability is considered in a proceeding in equity or at law).
(b) The execution and delivery of this Agreement by
such Jillian's Option Holder or Continuing Warrant Holder does not, and the
consummation of the transactions contemplated by this Agreement will not result
in any violation or breach of, or constitute (with or without notice or lapse
of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any benefit) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, contract or other agreement, instrument or obligation to
which such Jillian's Option Holder or Continuing Warrant Holder is a party or
by which such Jillian's Option Holder or Continuing Warrant Holder or any of
its properties or assets may be bound, except for any such violations,
breaches, defaults, terminations, cancellations, accelerations or conflicts
which would not, in the aggregate, have or result in a Material Adverse Effect
on such Jillian's Option Holder or Continuing Warrant Holder or impair the
ability of such Jillian's Option Holder or Continuing Warrant Holder to
consummate the transactions contemplated by this Agreement.
(c) No Consent of any person, including without
limitation, any Governmental Entity, is required by or with respect to such
Jillian's Option Holder or Continuing Warrant Holder in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for (i) such Consents as may be
required under applicable state
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securities laws and (ii) such other Consents (other than those of a
Governmental Entity) which, if not obtained or made, would not, individually or
in the aggregate, have a Material Adverse Effect on such Jillian's Option
Holder or Continuing Warrant Holder or impair the ability of such Jillian's
Option Holder or Continuing Warrant Holder to consummate the transactions
contemplated by this Agreement.
5.2 Acquisition of Holdings Management Options and
Holdings Warrants for Investment. Such Continuing Option Holder or
Continuing Warrant Holder is acquiring Holdings Management Options or
Holdings Warrants (as defined below) for its own account for investment
purposes and not (a) as nominee or agent for any other person, firm,
corporation or entity, or (b) with a view toward, or for sale in connection
with, any distribution thereof or (c) with any present intention of
distributing or selling any Holdings Management Options or Holdings Warrants.
Such Continuing Option Holder or Continuing Warrant Holder agrees that the
Holdings Management Options and Holdings Warrants, and the shares of Holdings
Common for which they are exercisable, may only be sold, transferred, offered
for sale, pledged, hypothecated or otherwise disposed of if registered under
applicable law (including without limitation the Securities Act) or if so sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
pursuant to an available exemption from all applicable registration
requirements. Such Continuing Option Holder or Continuing Warrant Holder has
such sufficient knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of its investment, and such
Continuing Option Holder or Continuing Warrant Holder understands and is able
to bear any economic risks associated with such investment for an indefinite
period of time, inasmuch as the Holdings Management Options and Holdings
Warrants, and the shares of Holdings Common for which they are exercisable,
have not been, and may not in the foreseeable future be, registered under the
Securities Act, and including the risk of the loss of such Continuing Option
Holder's or Continuing Warrant Holder's entire investment in Holdings
Management Options or Holdings Warrants. Such Continuing Option Holder or
Continuing Warrant Holder and such Continuing Option Holder's or Continuing
Warrant Holder's attorneys, accountants and other representatives and
advisors, if any,
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(i) have been given an opportunity to ask, and have to the extent that such
Continuing Option Holder or Continuing Warrant Holder has considered
necessary, asked questions of, and have received answers from,
representatives of Holdings and Jillian's concerning the terms of this
investment and the affairs of Holdings and Jillian's; and (ii) have been given
or afforded access to all documents, records, books and additional information
which such Continuing Option Holder or Continuing Warrant Holder has requested
regarding such matters.
5.3 Title to Jillian's Management Options and Jillian's
Warrants. Such Jillian's Option Holder has good, valid and marketable title to
the Jillian's Management Options to be received by Holdings from such
Jillian's Option Holder pursuant to this Agreement. Such Continuing Warrant
Holder has good, valid and marketable title to the Jillian's Warrants (as
defined below) to be received by Holdings from such Continuing Warrant Holder
pursuant to this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF JILLIAN'S
Jillian's represents and warrants to Holdings and the JWC
Group, as follows:
6.1 Organization of Jillian's. Each of Jillian's and its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has all
requisite corporate power to own, lease and operate its property and to carry
on its business as now being conducted and as proposed to be conducted and is
duly qualified or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which the failure to be so qualified or
licensed would, in the aggregate, have or result in a Material Adverse Effect
on Jillian's (taken separately) or Jillian's and its subsidiaries (taken as a
whole). Except as set forth in Section 2.1 of the Disclosure Schedule (as
defined in the Merger Agreement), Jillian's does not, directly or indirectly,
own any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in, any
corporation,
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partnership, joint venture or other business association or entity.
6.2 Authority; No Conflict; Required Filings and Consents.
(a) Jillian's has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Jillian's. This
Agreement has been duly and validly executed and delivered by Jillian's and
constitutes a valid and binding obligation of Jillian's, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(b) The execution and delivery by Jillian's of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not, (i) conflict with, or result in any violation or breach of any
provision of the Articles of Incorporation, as amended, or the By-laws, of
Jillian's or (ii) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right
of termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which Jillian's or any of its subsidiaries is a party or by which
any of them or any of their properties or assets may be bound, except in the
case of clause (ii) for any such violations, breaches, defaults, terminations,
cancellations, accelerations or conflicts which would not, in the aggregate,
have a Material Adverse Effect on Jillian's (taken separately) or Jillian's and
its subsidiaries (taken as a whole) or impair the ability of Jillian's to
consummate the transactions contemplated by this Agreement.
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(c) Except as set forth in Section 2.3(c) of the
Disclosure Schedule, no Consent of any person, including, without limitation,
any Governmental Entity is required by or with respect to Jillian's or any of
its subsidiaries in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for (i) such Consents as may be required under applicable state securities laws
and (ii) such other Consents (other than those of a Governmental Entity) which,
if not obtained or made, would not, individually or in the aggregate, have a
Material Adverse Effect on Jillian's (taken separately) or Jillian's and its
subsidiaries (taken as a whole) or impair the ability of Jillian's to
consummate the transactions contemplated by this Agreement.
ARTICLE VII
COVENANTS
7.1 Legal Conditions. Each of the parties hereto will take
all reasonable actions necessary to comply promptly with all legal requirements
which may be imposed on it with respect to the transactions contemplated
hereby and will promptly cooperate with and furnish information to each other
in connection with any such requirements imposed upon any of them in connection
with the transactions contemplated hereby. Each of the parties hereto will
take all reasonable actions necessary to obtain (and will cooperate with each
other in obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity required to be obtained or made by any
such party in connection with the transactions contemplated hereby.
7.2 Consents and Approvals. Each of the parties hereto
shall use all reasonable efforts to obtain all necessary consents, waivers and
approvals under any of such party's material agreements, contracts, licenses,
leases or commitments in connection with the transactions contemplated hereby.
7.3 Reasonable Efforts. The parties hereto agree to use
reasonable efforts to effect the Closing and otherwise consummate the
transactions contemplated hereby.
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7.4 JWC Agreements. JWC will execute and deliver the
Stockholders Agreement and the Management Agreement (as defined in the Merger
Agreement) at or prior to the Closing.
7.5 Continuing Shareholder Agreements; Other Option Holder
Agreements. The Continuing Shareholders will each execute and deliver the
Stockholders Agreement at or prior to the Closing and a Holdings Option, at the
Closing, exercisable for such number of shares of Holdings Common as set
forth on Schedule 1 hereto. The Other Option Holders will each execute and
deliver the Stockholders Agreement at or prior to the Closing and a Hold-
ings Option, at the Closing, exercisable for such number of shares of Holdings
Common as set forth on Schedule 1 hereto.
7.6 Continuing Option Holder Agreements. The Continuing
Option Holders will each execute and deliver the Stockholders Agreement at or
prior to the Closing and a Holdings Management Option, at the Closing,
exercisable for such number of shares of Holdings Common as set forth on
Schedule 2 hereto.
7.7 Holdings Agreements. Holdings will (i) adopt the
Holdings Stock Option Plan at or prior to the Closing, (ii) execute and deliver
the Stockholders Agreement at or prior to the Closing, (iii) execute and
deliver a Holdings Option for each Continuing Shareholder and Other Option
Holder, at the Closing, exercisable for such number of shares of Holdings
Common as set forth on Schedule 1 hereto, (iv) execute and deliver a Holdings
Management Option for each Continuing Option Holder, at the Closing,
exercisable for such number of shares of Holdings Common as set forth on
Schedule 2 hereto and (v) execute and deliver a warrant to purchase shares of
Holdings Common, substantially in the form of Exhibit B hereto (a "Holdings
Warrant"), for each Continuing Warrant Holder, at the Closing, exercisable
for such number of shares of Holdings Common as set forth on Schedule 3 hereto.
7.8 Debt Instruments. Island Partners, Ltd. will execute
and deliver a promissory note (the "IP Promissory Note") in the principal
amount of $200,000 at an annual rate of interest equal to that paid by
Jillian's on borrowings from its primary bank to be designated by
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the Board of Directors of Holdings as of the Effective Time, substantially in
the form of Exhibit C hereto, at or prior to the Closing. Xxxxxx Xxxxxx and
[ ] will execute and deliver a promissory note (the "Xxxxxx Promissory Note")
in the principal amount of $375,000 at a 7% annual interest rate, substantially
in the form of Exhibit D hereto, at or prior to the Closing. Xxxxx Xxxx will
execute and deliver a promissory note (the "Xxxx Promissory Note") in the
principal amount of $50,000 at an annual rate of interest equal to that paid by
Jillian's on borrowing from its primary bank to be designated by the Board of
Directors of Holdings as of the Effective Time, substantially in the form of
Exhibit E hereto, at or prior to the Closing. The IP Promissory Note, the
Xxxxxx Promissory Note and the Xxxx Promissory Note are collectively referred
to herein as the "Debt Instruments." Each of Island Partners, Ltd., Xxxxxx
Xxxxxx and Xxxxx Xxxx hereby represents and warrants to Holdings and the JWC
Group that (i) such Borrower has all requisite power and authority to enter
into the applicable Debt Instrument, (ii) the execution and delivery of the
applicable Debt Instrument have been duly authorized by all necessary action
on the part of such Borrower, and (iii) the applicable Debt Instrument has been
duly and validly executed and delivered by such Borrower and constitutes a
valid and binding obligation of such Borrower, enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and by general
equitable principles (regardless of whether enforceability is considered in a
proceeding in equity or at law). At the Closing, Holdings will deliver to
each Borrower the number of shares of Holdings Common for which the applicable
note serves as consideration, as set forth in such note. Further, the
Borrowers will each execute and deliver the Stockholders Agreement at or
prior to the Closing.
7.9 No Solicitation. None of Jillian's the Continuing
Shareholders, the Other Option Holders, the Continuing Option Holders, the
Non-Continuing Option Holders, the Borrowers or the Continuing Warrant Holders
will (i) solicit, initiate, facilitate or encourage any inquiries or proposals
that constitute, or could reasonably be expected to lead to, a proposal or
offer for a merger, consolidation, business combination, sale of
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substantial assets, sale of shares of capital stock or similar transactions
involving Jillian's or any of its subsidiaries, other than the transactions
contemplated by this Agreement or the Merger Agreement (any of the foregoing
inquiries or proposals being referred to in this Agreement as an "Acquisition
Proposal"), (ii) engage in negotiations or discussions concerning, or provide
any non-public information to any person or entity relating to, any Acquisition
Proposal, or (iii) agree to, approve or recommend any Acquisition Proposal;
provided, however, that nothing contained in this Agreement shall prevent
Jillian's or its Board of Directors from furnishing nonpublic information to,
or entering into discussions or negotiations with, any person or entity in
connection with an unsolicited bona fide written Acquisition Proposal by such
person or entity or recommending an unsolicited bona fide written Acquisition
Proposal to the shareholders of Jillian's, if and only to the extent that the
Board of Directors of Jillian's determines in good faith by a majority vote,
(x) after consultation with its financial advisor, that such Acquisition
Proposal would, if consummated, result in a transaction more favorable to the
shareholders of Jillian's from a financial point of view than the transaction
contemplated by this Agreement (any such more favorable Acquisition Proposal
being referred to in this Agreement as a "Superior Proposal") and (y) based on
the written opinion of outside legal counsel, that failing to take such action
would result in a breach of its fiduciary duties to shareholders under
applicable law.
7.10 Continuing Warrant Holders. The Continuing Warrant
Holders will each execute and deliver the Stockholders Agreement at or prior to
the Closing and will, at the Closing, deliver to Holdings any warrants to
purchase shares of Jillian's Common (each a "Jillian's Warrant") held by them
(whether or not exercisable).
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
8.1 Conditions to Each Party's Obligation. The respective
obligations of each party to consummate the transactions contemplated hereby
are subject to the satisfaction (or waiver by the relevant party under the
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Merger Agreement) at or prior to the Closing of each of the conditions set
forth in Sections 6.1 (a) through (h), 6.2 and 6.3 of the Merger Agreement.
8.2 Additional Conditions to Obligations of Holdings and
JWC. The obligations of Holdings and JWC to effect the transactions
contemplated by this Agreement are subject to the satisfaction of each of the
following conditions, any of which may be waived in writing exclusively by
Holdings and JWC:
(a) Representations and Warranties. The
representations and warranties of Jillian's, the Continuing Shareholders, the
Other Option Holders, the Continuing Option Holders, the Non-Continuing
Option Holders, the Borrowers and the Continuing Warrant Holders set forth in
this Agreement shall be true and correct as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date, except for
changes contemplated by this Agreement, and Holdings and JWC shall have
received a certificate signed by each such party to such effect.
(b) Performance of Obligations. Jillian's, the
Continuing Shareholders, the Other Option Holders, the Continuing Option
Holders, the Non-Continuing Option Holders, the Borrowers and the Continuing
Warrant Holders shall have performed all obligations required to be performed
by them under this Agreement at or prior to the Closing Date, and Holdings and
JWC shall have received a certificate signed by each such party to such effect.
(c) Opinion. Holdings shall have received the
opinion of Xxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, in form and substance reasonably
acceptable to Holdings, dated the Closing Date, covering the matters set forth
on Exhibit F hereto.
8.3 Additional Conditions to Obligations of Jillian's, the
Continuing Shareholders, the Other Option Holders, the Continuing Option
Holders, the Non-Continuing Option Holders, the Borrowers and the Continuing
Warrant Holders. The obligations of Jillian's, the Continuing Shareholders,
the Other Option Holders, the Continuing Option Holders, the Non-Continuing
Option
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Holders, the Borrowers and the Continuing Warrant Holders to effect the
transactions contemplated by this Agreement are subject to the satisfaction of
each of the following conditions, any of which may be waived, in writing,
exclusively by Jillian's, the Continuing Shareholders, the Other Option
Holders, the Continuing Option Holders, the Non-Continuing Option Holders, the
Borrowers and the Continuing Warrant Holders:
(a) Representations and Warranties. The
representations and warranties of Holdings and JWC set forth in this Agreement
shall be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date, except for changes
contemplated by this Agreement, and Jillian's, the Continuing Shareholders, the
Other Option Holders, the Continuing Option Holders, the Non-Continuing Option
Holders, the Borrowers and the Continuing Warrant Holders shall have received a
certificate signed by each such party to such effect.
(b) Performance of Obligations. Holdings and the JWC
Group shall have performed all obligations required to be performed by them
under this Agreement at or prior to the Closing Date, and Jillian's, the
Continuing Shareholders, the Other Option Holders, the Continuing Option
Holders, the Non-Continuing Option Holders, the Borrowers and the Continuing
Warrant Holders shall have received a certificate signed by each such party to
such effect.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated, by any
of the parties hereto, prior to the Closing, in the event that the Merger
Agreement is terminated in accordance with its terms, and the transactions
contemplated hereby thereupon may be abandoned.
9.2 Effect of Termination. In the event of termination of
this Agreement as provided in Section 9.1, this Agreement shall immediately
become void, and there shall be no liability or obligation on the part of
Holdings, the JWC Group, Jillian's, the Continuing Sharehold-
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ers, the Other Option Holders, the Continuing Option Holders, the
Non-Continuing Option Holders, the Borrowers or the Continuing Warrant Holders
or their respective officers, directors, stockholders or affiliates, except
that a party may have liability to the other parties if the basis of
termination is a willful or reckless material breach by such party of one or
more of the provisions of this Agreement.
ARTICLE X
SURVIVAL
10.1 Survival. All representations and warranties
contained in this Agreement shall survive the Closing.
ARTICLE XI
MISCELLANEOUS
11.1 Amendment. This Agreement may be amended by the
parties hereto at any time. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
11.2 Extension; Waiver. At any time prior to the Closing,
the parties hereto may, to the extent legally allowed, (i) extend the time
for the performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto or
(iii) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in a written instrument signed on
behalf of such party.
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11.3 Notices. All notices and other communications
hereunder shall be in writing and shall be delivered personally or by
next-day courier or telecopied with confirmation of receipt to the parties at
the addresses specified below (or at such other address for a party as shall be
specified by like notice). Any such notice or other communication shall be
effective upon receipt, if personally delivered or telecopied, or one day after
delivery to a courier for next-day delivery.
(a) if to JWC, the JWC Group or Holdings, to
X.X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
(b) if to the Continuing Shareholders, the Other
Option Holders, the Continuing Option Holders, the Non-Continuing Option
Holders, the Borrowers or the Continuing Warrant Holders, to
Jillian's Entertainment Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to
Jillian's counsel:
Xxxx Xxxxxxx Xxxxx & Xxxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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(c) if to Jillian's to:
Jillian's Entertainment Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx Xxxxx & Xxxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
11.4 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. As used in this Agreement,
the term "affiliate(s)" shall have the meaning set forth in Rule 12b-2 of the
Exchange Act.
11.5 Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
11.6 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
11.7 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts
without regard to any applicable conflicts of law.
11.8 Severability. In case any one or more of the
provisions contained in this Agreement should be
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invalid, illegal or unenforceable in any respect against a party hereto, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby and such
invalidity, illegality or unenforceability shall only apply as to such party in
the specific jurisdiction where such judgment shall be made.
11.9 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of each of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have signed this
Agreement under seal as of the date first written above.
X.X. CHILDS EQUITY PARTNERS, L.P.
By: X.X. Childs Advisors, L.P., its
general partner
By: X.X. Childs Associates, L.P.,
its general partner
By: X.X. Childs Associates, Inc.,
its general partner
By:
---------------------------------
Name:
Title:
------------------------------------
[ ], as Representative of,
and Attorney-In-Fact for, the Group
JILLIAN'S ENTERTAINMENT
CORPORATION
By:
---------------------------------
Name:
Title:
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CONTINUING SHAREHOLDERS:
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx Xxxxx
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxx Brietbart
THE BLIND TRUST UDT 3/26/93
By:
---------------------------------
Name:
Title:
------------------------------------
Xxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
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OTHER OPTION HOLDERS:
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxx
------------------------------------
[CFO]
------------------------------------
Xxxxxxx X. Xxxx
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxxx Xxxxx
------------------------------------
Xxxxx Xxxxxxxxx
CONTINUING OPTION HOLDERS:
------------------------------------
King Cole
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------------------------------------
Xxxx X. Xxxxxx
------------------------------------
Xxxxxxxx Xxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
------------------------------------
Xxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxx Xxxx
------------------------------------
Xxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxx
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------------------------------------
Xxx Xxxxxx
THE BLIND TRUST UDT 3/26/93
By:
---------------------------------
Name:
Title:
NON-CONTINUING OPTION HOLDERS:
[ ]
BORROWERS:
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Xxxxx Xxxx
ISLAND PARTNERS, LTD.
By:
---------------------------------
Name:
Title:
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CONTINUING WARRANT HOLDERS:
------------------------------------
Xxxxx Brietbart
------------------------------------
[Seattle Landlord]
33
