EXHIBIT 10.2
January 27, 2002
J HOLDINGS CORP.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Equity Capital Commitment
Gentlemen:
Reference is made to that certain Agreement and Plan of Merger (the
"Agreement"), dated as of the date hereof, by and among J Holdings Corp.
("Parent"), J Acquisition Corp. ("Purchaser") and Xxxxx Xxxxx, Inc. (the
"Company"), which agreement contemplates the acquisition by Parent of 100% of
the outstanding shares of the Company (such acquisition, together with
agreements related thereto or contemplated thereby, representing the
"Transaction"). In connection therewith, SJF Enterprises, Inc. or an affiliate
thereof (the "Investor") is pleased to advise you that it hereby commits to
contribute to Parent 754,717 shares of the common stock of the Company (the
"Investment"), to be exchanged (immediately prior to the Transaction) for shares
of common stock of Parent representing twenty percent (20%) of the outstanding
common stock of Parent and shares of preferred stock of Parent representing
twenty percent (20%) of the outstanding preferred stock of Parent. The
Investor's commitment to provide the Investment is subject in all respects to
satisfaction of the terms and conditions contained in this commitment letter and
in the Outline of Terms and Conditions attached as Exhibit A (the "Term Sheet").
The Investor's commitment to provide the Investment is subject to (i)
the negotiation, execution and delivery of definitive documentation thereof,
including, without limitation, a Certificate of Designations of the Senior
Preferred, in form and substance satisfactory to the Investor, Parent and their
respective counsel, (ii) the execution and delivery of a Stockholders' Agreement
between the Company, the Investor and certain other parties substantially in the
form of Exhibit B hereto, (iii) the conditions precedent to the closing of the
Transaction set forth in Sections 6.1, 6.2 and 6.3 (other than 6.3(c)) of the
Agreement shall have been satisfied and the parties to the Agreement shall be
willing and prepared to consummate the Transaction, (iv) all conditions
precedent to the obligations of the Senior Lender, Purchaser Lenders, and Parent
Equity Investors to consummate the Senior Financing, Purchaser Debt Financing
and Parent Equity Financing (other than any condition requiring the consummation
of the contribution of Shares contemplated by this Commitment Letter) shall have
been satisfied and the Senior Lender, Purchaser Lenders and Parent Equity
Investors shall intend to and shall be willing and prepared to consummate the
Senior Financing, the Purchaser Debt Financing and the Parent Equity Financing
(as the terms set forth in this subparagraph (iv) are defined in the Agreement),
and (v) the satisfaction of the conditions set forth in the Term Sheet attached
hereto.
The offer made by the Investor in this commitment letter is contingent
upon execution of the Agreement, and should the Agreement be executed, the
commitment by the Investor to provide the Investment shall expire upon the
earlier of (i) the termination of the Agreement and (ii) the Expiration Date (as
defined in the Agreement), as may be extended in accordance with the terms of
the Agreement.
If the terms and conditions of the offer contained herein meet with your
approval, please indicate your acceptance by signing and returning a copy of
this commitment letter to the Investor.
This commitment letter, including the attached Exhibits (i) supersedes
all prior discussions, agreements, commitments, arrangements, negotiations or
understandings, whether oral or written, of the parties with respect thereto,
(ii) shall be governed by the law of the State of New York, (iii) shall be
binding upon the parties and their respective successors and assigns, (iv) may
not be relied upon or enforced by any other person or entity other than the
parties hereto and Purchaser, and (v) may be signed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument. If this commitment letter becomes the
subject of a dispute, each of the parties hereto hereby waives trial by jury.
This commitment letter may be amended, modified or waived only in a writing
signed by the parties hereto.
Very truly yours,
SJF ENTERPRISES, INC.
By: /s/ XXX XXXXX
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman
Xxxxxx and accepted on this
27th day of January, 2002:
J HOLDINGS CORP.
By: /s/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: President
EXHIBIT A
OUTLINE OF TERMS AND CONDITIONS FOR PROPOSED EQUITY FINANCING
This Outline of Terms and Conditions is part of the Equity Commitment Letter,
dated January 27, 2002 (the "Commitment Letter"), addressed to J Holdings Corp.
by SJF Enterprises, Inc. ("SJF"), and is subject to the terms and conditions of
the Commitment Letter. Capitalized terms used herein shall have the meanings set
forth in the Commitment Letter unless otherwise defined herein.
ISSUER: J Holdings Corp.
TOTAL ISSUANCE
OF PREFERRED: $18 million
TOTAL ISSUANCE
OF COMMON: $2 million
COMMITMENT
BY INVESTOR: $3.6 million in senior preferred stock (the "Preferred"),
having an aggregate liquidation preference of $3.6
million, and $400,000 in shares of Common Stock (the
"Common"), at a price of $0.10 per share.
MANDATORY
REDEMPTION
OF PREFERRED: Five years.
PREFERRED Cumulative undeclared dividends (declarable only in cash),
DIVIDENDS: payable at the rate of 15% per annum, or such lower rate
as would ensure for any time in which ACI remains a holder
of the Preferred that the combined interest + dividend
rate payable on the Issuer's capital (which shall be an
amount equal to the sum of the Purchaser Debt Financing
(as defined in the Agreement), Preferred and Common (which
includes paid in capital and additional paid in capital))
does not exceed 15% for any annual period (the applicable
rate at any time being the "Base Rate"); provided,
however, that the foregoing limitation shall only apply to
the extent ACI Capital Co., Inc. remains subject to
applicable limitations prescribed by the Small Business
Administration ("SBA"). The rate paid on the Issuer's
capital shall be calculated in a manner consistent with
applicable regulations of the SBA.
USE OF PROCEEDS: To finance the Transaction and the general working capital
needs of the Issuer.
OPTIONAL
REDEMPTION: At the option of the Issuer, with no penalty.
TRANSFERABILITY: Subject to restrictions contained in the Stockholders'
Agreement.
COVENANTS: Standard for this type of security, including, but not
limited to, reporting requirements, change of control
restrictions, approval of mergers, acquisitions, equity
issuances, payment of dividends, debt incurrence,
redemption of equity or debt, amendments to the preferred
stock, amendments of equity rights, amendments to the
Issuer's charter and bylaws, changes in the Issuer's
management, material changes in business strategy,
increase in size of Board, etc. Such covenants will not
restrict the Issuer's ability to incur debt for the sole
purpose of prepaying Preferred.
CONDITIONS:
Customary conditions precedent, including, without
limitation:
1) Negotiation, execution, delivery of definitive
documentation.
2) Closing of the Acquisition contemplated by the
Agreement.
