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EXHIBIT 99.3
STOCK PURCHASE AGREEMENT
by and between
BJ CHICAGO, as the Buyer
and
JEREMIAH J. HENNESSEY
and
PAUL A. MOTENKO,
as the Sellers
DECEMBER 20, 2000
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "AGREEMENT") is entered into as of
December 20, 2000, by and between BJ Chicago, LLC, a Delaware limited liability
company, (the "BUYER") and Jeremiah J. Hennessey, an individual ("HENNESSEY"),
and Paul A. Motenko, an individual ("MOTENKO"), both of whom are shareholders of
Chicago Pizza & Brewery, Inc., a California corporation ("TARGET"). Hennessey
and Motenko are each referred to herein as a "Seller" and collectively as the
"SELLERS." The Buyer and the Sellers are referred to collectively herein as the
"PARTIES."
RECITALS
A. Hennessey and Motenko own 661,357 and 680,357 shares of the common stock
of Target, respectively, which constitute all of the outstanding shares of
capital stock of Target held by Sellers; and
B. This Agreement contemplates a transaction in which the Buyer will
purchase from the Sellers, and the Sellers will sell to the Buyer, in return for
cash as set forth below in Section 2, an aggregate of 661,358 shares of Target
common stock held by the Sellers.
AGREEMENT
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"AAA" has the meaning set forth in Section 9(n) below.
"AAA RULES" has the meaning set forth in Section 9(n) below.
"ACCREDITED INVESTOR" has the meaning set forth in Regulation D promulgated
under the Securities Act.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"ACCREDITED INVESTOR" has the meaning set forth in the preface above.
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"CLOSING" has the meaning set forth in Section 2(c) below.
"CLOSING DATE" has the meaning set forth in Section 2(c) below.
"CONFIDENTIAL INFORMATION" means any information concerning the businesses
and affairs of Target that is not already generally available to the public.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7(c) below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7(c) below.
"LIABILITY" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"ORDINARY COURSE OF BUSINESS" means the ordinary courage of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTIES" has the meaning set forth in the preface above with each Party
being referred to, individually, as a "Party."
"PERSON" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization
or a governmental entity (or any department, agency or political subdivision
thereof).
"PURCHASE PRICE" has the meaning set forth in Section 2(b) below.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge
or other security interest.
"SELLER" has the meaning set forth in the preface above.
"TARGET" has the meaning set forth in the preface above.
"TARGET SHARES" mean any shares of the common stock, no par value per
share, of Target, with each Target Share being referred to, individually, as a
"Target Share."
"TAX" or "TAXES" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premiums windfall profits, environmental (including taxes under Section 59A of
the Internal Revenue Code), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto, whether disputed or not.
The terms "Tax" and "Taxes" include any liability for any of the foregoing items
as a result of being a member of any
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affiliated, consolidated, combined, unitary or similar group and any liability
for payment of any amounts as a result of a Tax sharing or indemnity agreement.
"THIRD PARTY CLAIM" has the meaning set forth in Section 7(c) below.
2. PURCHASE AND SALE OF TARGET SHARES.
(a) BASIC TRANSACTION. On and subject to the terms and conditions of this
Agreement, the Buyer agrees topurchase from the Sellers, and the Sellers agree
to sell to the Buyer, an aggregate of 661,358 Target Shares, as follows:
<TABLE>
<CAPTION>
SELLER NUMBER OF TARGET SHARES SOLD
------ -----------------------------
<S> <C>
Hennessey 330,679
Motenko 330,679
</TABLE>
(b) PURCHASE PRICE. Upon the terms and subject to the conditions contained
herein, as consideration for the purchase of the Target Shares to be sold by the
Sellers as set forth in Section 2(a), above, on the Closing Date, the Buyer will
pay the Sellers in cash a price of $2.75 per share for an aggregate purchase
price of $1,818,734.50 (the "PURCHASE PRICE"), which shall be paid by Buyer by
same day wire transfer, cashier's check or other "same day funds" acceptable to
the Sellers. The Purchase Price shall be allocated among the Sellers in
proportion to their respective holdings of Target Shares.
(c) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Latham & Watkins at
12636 High Bluff Drive, Suite 300, San Diego, California, commencing at 10:00
a.m. local time on January 18, 2001 or, if any of the conditions set forth in
Section 6(a) (other than conditions with respect to actions the respective
Parties will take at the Closing itself) has not been satisfied, a later date
selected by the Buyer, which date shall be within five business days following
the satisfaction or waiver of all conditions to the obligations of the Parties
to consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) (such
date, the "CLOSING DATE").
(d) DELIVERIES AT THE CLOSING. At the Closing, (i) the Sellers will deliver
to the Buyer stock certificates representing an aggregate of 661,358 Target
Shares endorsed in blank or accompanied by duly executed assignment documents,
and (ii) the Buyer will deliver to the Sellers the consideration specified in
Section 2(b) above.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THIS TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each Seller represents
and warrants, as to himself, to the Buyer that the statements contained in this
Section 3(a) are correct and complete as of the date of this Agreement.
(i) AUTHORIZATION OF TRANSACTION. The Seller has full power and
authority to execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with
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its terms and conditions. The Seller need not give any notice to, make any
filing with, or obtain any authorization, consent or approval of any government
or governmental agency in order to consummate the transactions contemplated by
this Agreement.
(ii) NON-CONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which the Seller is subject or (B) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which the Seller is a party or by which it is
bound or to which any of its assets are subject, except where the conflict,
breach, default, acceleration, termination, modification, cancellation or
failure to give notice would not have a material adverse effect on the ability
of the parties to consummate the transactions contemplated hereby.
(iii) TARGET SHARES. Hennessey and Motenko hold of record and own
beneficially 661,357 and 680,357 Target Shares, respectively, free and clear of
any restrictions on transfer (other than any restrictions under the Securities
Act and state securities laws), Taxes, Security Interests, options, warrants,
purchase rights, contracts, commitments, equities, claims, encumbrances and
demands. The Seller is not a party to any option, warrant, purchase right or
other contract or commitment that could require the Seller to sell, transfer or
otherwise dispose of any capital stock of Target or any of the assets of Target
(other than this Agreement). The Seller is not a party to any voting trust,
proxy or other agreement or understanding with respect to the voting of any
capital stock of Target.
(b) REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Sellers that the statements contained in this Section 3(b) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
3(b)).
(i) ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Buyer is a
limited liability company duly organized, validly existing and in good standing
under the laws of Delaware. The Buyer has full power and authority (including
full corporate power and authority) to execute this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement.
(ii) INVESTMENT. The Buyer is not acquiring the Target Shares with a
view in connection with any distribution thereof within the meaning of the
Securities Act.
(iii) ACCREDITED INVESTOR. The Buyer is an Accredited Investor within
the meaning of Rule 501(a) under the Securities Act, and the Target Shares to be
acquired by it pursuant to this Agreement are being acquired for its own
account, not as a nominee or agent,
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and not with a view to, or for sale in connection with, any distributions
thereof. The Buyer has such knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the shares, and it is capable of bearing the economic risks of such
investment.
4. PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary, proper or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 6 below).
(b) NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice to
the other of any material adverse development causing a breach of any of its own
representations and warranties in Section 3 above. No disclosure by any Party
pursuant to this Section 4(b), however, shall be deemed to cure any
misrepresentation or breach of warranty or breach of covenant.
(c) EXCLUSIVITY. The Sellers will not permit or cause any of their
respective affiliates or agents to, directly or indirectly, (i) solicit,
initiate or encourage the submission of any proposal or offer from any Person
relating to the acquisition of any capital stock or other voting securities, or
any substantial portion of the assets of, Target (including any acquisition
structured as a merger, consolidation or share exchange) or (ii) participate in
any discussions or negotiations regarding, furnish any information with respect
to, assist or participate in or facilitate in any other manner any effort or
attempt by any Person to do or seek any of the foregoing. Neither of the Sellers
will vote his Target Shares in favor of any such acquisition structured as a
merger, consolidation or share exchange. The Sellers will notify the Buyer
immediately if any Person makes any proposal, offer, inquiry or contact with
respect to any of the foregoing. In addition, the Sellers will not reallocate,
issue, transfer, sell, pledge or otherwise dispose of any equity interests in
the Target prior to the Closing. Further, the Sellers will not and will not
cause or permit any of their respective affiliates or agents to, directly or
indirectly, discuss, negotiate or consider any other proposals or inquiries from
any other persons or entities relating to the sale or other transfer of the
Target Shares.
5. POST-CLOSING COVENANTS. The Parties agree that if at any time after the
Closing any further action is necessary or desirable to carry out the purposes
of this Agreement, each of the Parties will take such further action (including
the execution and delivery of such further instruments and documents) as any
other Party reasonably may request, all at the sole cost and expense of the
requesting Party (unless the requesting Party is entitled to indemnification
therefor under Section 7 below).
6. CONDITIONS TO OBLIGATION TO CLOSE.
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(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a) above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) the Sellers shall have performed and complied with all of their
covenants hereunder in all material respects through the Closing;
(iii) no action, suit or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree, ruling
or charge shall be in effect), or (C) affect adversely the right of the Buyer to
own the Target Shares; and
(iv) from the date hereof through the Closing Date, there shall have
been no material adverse change in the financial condition, results of
operations, properties, business or prospects of Target.
(v) Buyer shall have received an opinion of counsel to the Sellers in
form and substance reasonably acceptable to Buyer covering the matters set forth
in Exhibit A attached hereto.
All actions to be taken by the Sellers in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments and
other documents required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer. The Buyer may waive
any condition specified in this Section 6(a) if it executes a writing so stating
at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLERS. The obligation of the Sellers
to consummate the transactions to be performed by them in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(b) above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing; and
(iii) no action, suit or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement
or (B) cause any of the transactions contemplated by this Agreement to be
rescinded
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following consummation (and no such injunction, judgment, order, decree, ruling
or charge shall be in effect).
All actions to be taken by the Buyer in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments and
other documents required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Sellers. The Sellers may
waive any condition specified in this Section 6(b) by executing a writing so
stating at or prior to the Closing.
7. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
(i) In the event the Sellers breach (or in the event any third party
alleges facts that, if true, would mean the Sellers have breached) any of their
respective representations, warranties and covenants contained herein, then the
Sellers agree to indemnify the Buyer from and against the entirety of any
Adverse Consequences the Buyer may suffer through and after the date of the
claim for indemnification resulting from, arising out of, relating to, or caused
by the breach (or the alleged breach).
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLERS. In the event the
Buyer breaches (or in the event any third party alleges facts that, if true,
would mean the Buyer has breached) any of its representations, warranties and
covenants contained herein, then the Buyer agrees to indemnify the Sellers from
and against the entirety of any Adverse Consequences the Sellers may suffer
through and after the date of the claim for indemnification resulting from,
arising out of, relating to, or caused by the breach (or the alleged breach),
(c) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the "INDEMNIFIED
PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which may give rise
to a claim for indemnification against any other Party (the "Indemnifying
Party") under this Section 7, then the Indemnified Party shall promptly notify
the Indemnifying Party thereof in writing; provided, however, that no delay on
the part of the Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying
Party notifies the Indemnified Party in writing within 15 days after the
Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party from and against the
entirety of any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the Third
Party Claim, (B) the Indemnifying Party provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Third Party Claim
and fulfill its indemnification obligations hereunder, and (C) the Indemnifying
Party conducts the defense of the Third Party Claim actively and diligently.
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(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 7(c)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, (B) the Indemnified
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnifying Party (such consent not to be withheld unreasonably) and (C) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (such consent not to be withheld unreasonably
and such consent not to be withheld at all if the judgment or settlement
contains a full release reasonably satisfactory to the Indemnified Party).
(iv) In the event any of the conditions in Section 7(c)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend against,
and consent to the entry of any judgment or enter into any settlement with
respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, any Indemnifying Party in connection therewith), (B) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including
reasonable attorneys' fees and expenses) and (C) the Indemnifying Party will
remain responsible for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Section 7.
8. TERMINATION.
(a) TERMINATION OF AGREEMENT. The Parties may terminate this Agreement as
provided below:
(i) the Buyer and the Sellers may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Sellers at any time prior to the Closing (A) in the event the Sellers
have breached any material representation, warranty or covenant contained in
this Agreement in any material respect, the Buyer has notified the Sellers of
the breach and the breach has continued, without cure for a period of 10 days
after the notice of breach or (B) if the Closing shall not have occurred on or
before January 18, 2001 by reason of the failure of any condition precedent
under Section 5(a) hereof (unless the failure results primarily from the Buyer
itself breaching any representation, warranty or covenant contained in this
Agreement); and
(iii) The Sellers may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) in the event the Buyer
has breached any material representation, warranty or covenant contained in this
Agreement in any material respect, the Sellers have notified the Buyer of the
breach and the breach has continued without cure for a period of 10 days after
the notice of breach or (B) if the Closing shall not have occurred on or before
January 18, 2001 by reason of the failure of any condition precedent under
Section 6(b) hereof (unless the failure results primarily from the Sellers
themselves breaching any representation or warranty or covenant contained in
this Agreement).
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(b) EFFECT OF TERMINATION. If either Party terminates this Agreement
pursuant to Section 8(a) above, all rights and obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other Party
(except for any Liability of any Party then in breach). In addition, in the
event of termination of this Agreement pursuant to Section 8(a) above, each
Party will redeliver all documents, work papers and other material of any other
Party relating to the transactions contemplated hereby, whether obtained before
or after the execution hereof, to the Party furnishing the same.
9. MISCELLANEOUS.
(a) CONFIDENTIALITY OF AGREEMENT, PRESS RELEASES AND PUBLIC ANNOUNCEMENTS.
Except as set forth below, the Parties shall, and shall cause their officers,
employees and representatives to, treat and hold as confidential the existence
and terms of this Agreement at all times prior to the Closing Date.
Specifically, no Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement prior to the
Closing without the prior written approval of the Buyer and the Seller;
provided, however, that any Party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities to make such disclosure (in which case
the disclosing Party will use its reasonable best efforts to advise the other
Parties prior to making the disclosure).
(b) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval of
the Buyer and the Sellers; provided, however, that the Buyer may (i) assign any
or all of its rights and interests hereunder to one or more of its Affiliates
and (ii) designate one or more of its Affiliates to perform its obligations
hereunder (in any or all of which cases the Buyer nonetheless shall remain
responsible for the performance of all of its obligations hereunder).
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) HEADINGS. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(g) NOTICES. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below:
IF TO THE SELLERS:
Jeremiah J. Hennessey
16162 Beach Boulevard, Suite 100
Huntington Beach, CA 92647
Facsimile: (714) 848-5587
Paul A. Motenko
16162 Beach Boulevard, Suite 100
Huntington Beach, CA 92647
Facsimile: (714) 848-5587
WITH A COPY TO:
Steven J. Insel, Esq.
Jeffer, Mangels, Butler & Marmaro
2121 Avenue of the Stars, 10th Floor
Los Angeles, CA 90067
Facsimile: (310) 203-0567
IF TO THE BUYER:
BJ Chicago, LLC
c/o The Jacmar Companies, Inc.
2200 W. Valley Boulevard Alhambra, CA 91803
Attn: James A. Dal Pozzo
Telephone: (626) 576-0737
Facsimile: (626) 576-2211
WITH A COPY TO:
Latham & Watkins
12636 High Bluff Drive, Suite 300 San Diego, CA 92130
Attn.: Robert E. Burwell, Esq.
Telephone: (858) 523-5400
Facsimile: (858) 523-5450
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service
or ordinary mail), but no such notice, request,
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demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Buyer and
the Seller. No waiver by any Party of any default, misrepresentation or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(j) EXPENSES. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(k) CONSTRUCTION. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder and any- applicable common law, unless the
context requires otherwise. The word "including" shall mean including without
limitation.
(l) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with, their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter in addition to any other remedy to
which they may be entitled, at law or in equity.
(m) INCORPORATION OF EXHIBITS, ANNEXES AND SCHEDULES. The Exhibits
identified in this Agreement are incorporated herein by reference and made a
part hereof
(n) ARBITRATION. Any dispute arising out of this Agreement, or its
performance or breach, shall be resolved by binding arbitration in Los Angeles,
California under the Commercial Arbitration Rules (the "AAA RULES") of the
American Arbitration Association (the "AAA"). This arbitration provision is
expressly made pursuant to and shall be governed by the Federal Arbitration Act,
9 U. S. C. Sections 1-14 as well as the AAA Rules. The Parties agree that
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pursuant to Section 9 of the Federal Arbitration Act, a judgment of a United
States District Court of competent jurisdiction shall be entered upon the award
made pursuant to the arbitration. A single arbitrator, who shall have the
authority to allocate the costs of any arbitration initiated under this
paragraph, shall be selected according to the AAA Rules within ten (10) days of
the submission to the AAA of the response to the statement of claim or the date
on which any such response is due, whichever is earlier. The arbitrator shall be
required to furnish to the parties to the arbitration a preliminary statement of
the arbitrator's decision that includes the legal rationale for the arbitrator's
conclusion and the calculations pertinent to any damage award being made by the
arbitrator. The arbitrator shall then furnish each of the parties to the
arbitration the opportunity to comment upon and/or contest the arbitrator's
preliminary statement of decision either, in the discretion of the arbitrator,
through briefs or at a hearing. The arbitrator shall render a final decision
following any such briefing or hearing. The arbitrator shall conduct the
arbitration in accordance with the Federal Rules of Evidence and the AAA Rules.
The arbitrator shall decide the amount and extent of the pre-hearing discovery
which is appropriate. The arbitrator shall have the power to enter any award of
monetary and/or injunctive relief (including the power to issue permanent
injunctive relief and also the power to reconsider any prior request for
immediate injunctive relief by any Party and any order as to immediate
injunctive relief previously granted or denied by a court in response to a
request therefor by any Party), including the power to render an award as
provided in Rule 43 of the AAA Rules; PROVIDED, HOWEVER THAT THE ARBITRATOR
SHALL NOT HAVE THE POWER TO AWARD CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY
DAMAGES UNDER ANY CIRCUMSTANCES REGARDLESS OF WHETHER SUCH DAMAGES MAY BE
AVAILABLE UNDER APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHTS, IF ANY,
TO RECOVER ANY SUCH DAMAGES, WHETHER IN ARBITRATION OR LITIGATION. The
arbitrator shall have the power to award the prevailing party its costs and
reasonable attorney's fees; provided, however, that the arbitrator shall not
award attorneys' fees to a prevailing party if the prevailing party received a
settlement offer unless the arbitrator's award to the prevailing party is
greater than such settlement offer without taking into account attorneys' fees
in the case of the settlement offer or the arbitrator's award. In addition to
the above courts, the arbitration award may be enforced in any court having
jurisdiction over the Parties and the subject matter of the arbitration.
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<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
"BUYER"
BJ CHICAGO, LLC, a Delaware limited
liability company
By: THE JACMAR COMPANIES
Its: Managing Member
By: /s/ JAMES A. DAL POZZO
---------------------------------------
Name: James A. Dal Pozzo
Title: President
"SELLERS"
/s/ JEREMIAH J. HENNESSEY
-------------------------------------------
JEREMIAH J. HENNESSEY
/s/ PAUL A. MOTENKO
-------------------------------------------
PAUL A. MOTENKO
13
<PAGE>
EXHIBIT A
FORM OF OPINION OF COUNSEL TO SELLERS
The Buyer shall have received from counsel to the Sellers an opinion,
addressed to the Buyer and dated as of the Closing Date, in form and substance
as set forth below:
(a) The Stock Purchase Agreement has been duly executed and delivered by
the Sellers.
(b) The Stock Purchase Agreement constitutes a legally valid and binding
obligation of the Sellers, enforceable against the Sellers in accordance with
its terms.
(c) No registration of the Target Shares under the Securities Act is
required in connection with the offer, purchase, sale and delivery of the Target
Shares in the manner contemplated by the Stock Purchase Agreement.
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