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EXHIBIT (c)(11)
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of May [ ],
1997, by and among X.X. Childs Equity Partners, L.P., a Delaware limited
partnership ("JWC"), Jillian's Entertainment Holdings, Inc., a Delaware
corporation ("Holdings"), and the shareholders of Jillian's Entertainment
Corporation, a Florida corporation ("Jillian's"), listed on Schedule A hereto
(the "Shareholders").
WHEREAS, concurrently with the execution of this Agreement,
Holdings, Jillian's and Jillian's Entertainment Acquisition Corporation, a
Florida corporation and a wholly owned subsidiary of Holdings ("Sub"), have
entered into an Agreement and Plan of Merger (as the same may be amended from
time to time, the "Merger Agreement"), providing for the merger (the "Merger")
of Sub with and into Jillian's pursuant to the terms and conditions of the
Merger Agreement; and
WHEREAS, the Shareholders own of record and beneficially the
shares (the "Shares") of the common stock, par value $.001 per share, of
Jillian's (the "Jillian's Common") set forth opposite their respective names on
Schedule A hereto and desire to enter into this Agreement with respect to the
Shares; and
WHEREAS, in order to induce Holdings to enter into the Merger
Agreement and to induce JWC and Holdings to enter into the Purchase Agreement,
dated as of the date hereof, with Jillian's, the Continuing Shareholders, the
Other Option Holders, the Continuing Option Holders, the Continuing Warrant
Holders and the Borrowers (each as defined therein), the Shareholders have
agreed, upon the terms and subject to the conditions set forth herein, to vote
the Shares at a meeting of Jillian's shareholders in favor of approval of the
Merger Proposal (as defined in the Merger Agreement) pursuant to the terms of
the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and
agreements set forth herein, and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, the parties
hereto agree as follows:
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1. Agreement to Vote Shares.
(a) Each of the Shareholders agrees, during the term
of this Agreement, to vote the Shares as to which it has voting power or
control, in person or by proxy, in favor of approval of the Merger Proposal and
against approval of any matter which is inconsistent with the Merger Agreement
and the transactions contemplated thereby, at every meeting of the shareholders
of Jillian's at which such matters are considered and at every adjournment
thereof (each, a "Shareholder Meeting").
2. No Voting Trusts. Each of the Shareholders agrees that
such Shareholder will not, nor will such Shareholder permit any entity under
such Shareholder's control to, deposit any of such Shareholder's Shares in a
voting trust or subject any of its Shares to any arrangement with respect to
the voting of the Shares that is inconsistent with this Agreement.
3. Limitation on Dispositions and Proxies. During the term
of this Agreement, each of the Shareholders agrees not to sell, assign, pledge,
transfer or otherwise dispose of (each a "Transfer"), or grant any proxies with
respect to (except for a proxy which is not inconsistent with the terms of this
Agreement) any of such Shareholder's Shares.
4. Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to JWC and Holdings as of the
date hereof that:
(a) such Shareholder is the record or beneficial
owner of the Shares set forth opposite such Shareholder's name on Schedule A
hereto, and such Shares represent all of the Jillian's Common owned of record
or beneficially by such Shareholder, directly or indirectly;
(b) such Shareholder has full legal power and
authority to execute and deliver this Agreement;
(c) the Shares set forth opposite such Shareholder's
name on Schedule A hereto are free and clear of all proxies; and
(d) such Shareholder has duly executed and delivered
this Agreement and this Agreement constitutes a valid and binding obligation of
such Shareholder
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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).
5. Specific Performance. Each party hereto acknowledges
that it will be impossible to measure in money the damage to the other parties
if a party hereto fails to comply with the obligations imposed by this
Agreement, and that, in the event of any such failure, the other parties will
not have an adequate remedy at law or in damages. Accordingly, each party
hereto agrees that injunctive relief or other equitable remedy, in addition to
remedies at law or damages, is the appropriate remedy for any such failure and
will not oppose the granting of such relief on the basis that the other parties
have an adequate remedy at law. Each party hereto agrees that it will not
seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such equitable
relief.
6. Term of Agreement; Termination. The term of this
Agreement shall commence on the date hereof, and such term and this Agreement
shall terminate upon the earliest to occur of (i) the Effective Time (as
defined in the Merger Agreement); (ii) the date on which the Merger Agreement
is terminated in accordance with its terms; or (iii) the date on which the
Board of Directors of Jillian's withdraws or materially modifies or changes its
recommendation of the Merger Proposal if the Board of Directors of Jillian's,
based on the written opinion of outside legal counsel, determines, in good
faith by majority vote, that the failure to take such action would be deemed a
breach of its fiduciary duties to the Jillian's shareholders under applicable
law. Upon such termination, no party shall have any further obligations or
liabilities hereunder; provided, however, that such termination shall not
relieve any party from liability for any breach of this Agreement prior to such
termination.
7. Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
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respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by all parties hereto. No waiver of
any provisions hereof by any party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
8. 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.
If to the Shareholders, to the addresses
listed on Schedule A hereto.
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
If to JWC or Holdings:
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, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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Nothing in this Section 8 shall be deemed to constitute consent to the manner
and address for service of process in connection with any legal proceeding
(including litigation arising out of or in connection with this Agreement),
which service shall be effected as required by applicable law.
9. Miscellaneous.
(a) Nothing contained in this Agreement shall be
construed as creating any liability on the part of JWC under the Merger
Agreement.
(b) This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of Delaware without reference to its conflicts of law principles.
(c) In case any one or more of the provisions
contained in this Agreement should be 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.
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall be come 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.
(e) All Section headings herein are for convenience
of reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
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IN WITNESS WHEREOF, the parties hereto have executed under
seal and delivered this Agreement 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:
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
JILLIAN'S ENTERTAINMENT
HOLDINGS, INC.
By:
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Name: Xxxxx X. Xxxxxxx
Title: President
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SHAREHOLDERS:
--------------------------------
Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx Xxxxx
--------------------------------
Xxxxx Xxxx
--------------------------------
Xxxxx Xxxxxxxxx
THE BLIND TRUST UDT
3/26/93
By:
-----------------------------
Name:
Title:
--------------------------------
Xxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
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SCHEDULE A
Number of
Outstanding
Shareholder Shares Owned
----------- ------------
Xxxxxx X. Xxxxxx 1,323,600
Oakwood Apartments H-210
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxx Xxxxx 1,240,765
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Xxxxx Xxxx 551,667
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Xxxxx Xxxxxxxxx 400,000
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The Blind Trust UDT 206,625
3/26/93
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Xxxxxx Xxxxxx 133,333
[ ]
Xxxxxxx Xxxxxx 127,500
[ ]
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